Public Health Bill

  • discharged on 11 November 2015

Public Health Bill

Government Bill

177—2

As reported from the Health Committee

Commentary

Recommendation

The Health Committee has examined the Public Health Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill seeks to update existing public health legislation in order to improve, promote, and protect public health, and achieve equitable health outcomes for all the population groups in New Zealand. It would also enable New Zealand to comply with its obligations under the International Health Regulations 2005.

The majority of us believe that the bill provides mechanisms and instruments for timely intervention to protect public health. The majority of us recommend that the bill be passed with the following amendments.

Part One–Preliminary provisions, roles and responsibilities

Purpose of the Act

Clause three sets out the purpose of the Public Health Act, and the provisions designed to achieve it. We do not believe that these provisions recognise some at-risk populations. We recommend the inclusion of a reference to particular vulnerable populations such as children, Pacific peoples, and people with disabilities.

The majority of us recommend that the purpose should recognise that the mechanisms referred to in Part 3 of the New Zealand Public Health and Disability Act 2000 apply when District Health Boards (DHBs) undertake functions under the Public Health Act. These mechanisms enable Māori to contribute to decision-making and participate in the delivery of health and disability services.

Roles and responsibilities

Director-General

We consider that the functions of the Director-General should be broadened to include a requirement to take all reasonable steps to improve, protect and promote public health.

Under the bill the Director-General would be able to issue directions to any person carrying out functions or exercising powers under the Act or any regulations made under the Act. We recommend an amendment to make it clear that the power of direction would relate only to functions and powers that a person had under the Act or regulations. We also recommend that this power of direction could not be delegated to a ministry or DHB employee.

Director of Public Health

We recommend that the Director of Public Health be required to be a medical practitioner who is suitably experienced and qualified in public health medicine. We further recommend that if the Director-General of Health did not have suitable qualifications and experience to exercise the functions of a medical officer of health anywhere in New Zealand, then the Director of Public Health must undertake this role.

Medical officers of health and health protection officers

We recommend that medical officers of health be permitted to exercise powers and duties in any health district adjoining the health district or districts to which they are appointed. We believe that this provision would enable these medical officers to work together to manage incidents such as disease outbreaks.

We also recommend that, in a declared emergency, medical officers of health be able to exercise their powers and duties in the area in which the emergency exists. We recommend an amendment to the effect that one of the functions of medical officers of health is to provide independent advice to the Director of Public Health on matters relating to public health in the health district or districts for which they are responsible. We also recommend that medical officers of health be able to provide advice or reports on urgent or significant public health matters to the board of the DHB that they are employed by, with the agreement of the Director of Public Health.

We recommend an amendment to make it clear that health protection officers must be suitably qualified and experienced, consistent with the requirements for other designated officers such as environmental health officers.

Territorial authorities and environmental health officers

Territorial authorities play a significant role in the protection of public health in our communities. We recommend that the provisions outlining the functions and duties of territorial authorities and environmental health officers be brought into Part 1 of the bill. This would mean that the functions and duties of all significant agencies and individuals were set out in one part of the bill.

We also recommend the insertion of a new provision to recognise the importance of relationships between DHBs, territorial authorities and regional councils, and provide for the development of non-binding protocols.

Part 2–Health information

The bill provides for the disclosure of health information. We recommend an amendment so that the ability of a person to authorise disclosure is based on his or her capacity rather than age. This is consistent with the ability of individuals to consent to health services under the Code of Health and Disability Services Consumers’ Rights 1996.

Notification and reporting of conditions

The bill sets out the notification of conditions, clusters or outbreaks of conditions, and the presence of contaminants. We agree that the anonymous notification of AIDs, HIV, chlamydia, gonorrhoea, and syphilis should be retained and, therefore, we have recommended deleting any requirement to report National Health Index numbers for these cases.

We recommend the inclusion of a consultation requirement on any changes to the lists of notifiable conditions and contaminants, unless an urgent change is called for.

We agreed with submitters’ concerns about the ability of the Director-General to add items to the list of notifiable conditions in urgent situations. We consider that temporary specifications of notifiable conditions should be made only by the Minister, with an expiry period of three months.

We recommend that reference to epidemic diseases be removed from this part of the bill and from Schedule 1, and that amendments be made instead to the Epidemic Preparedness Act, as powers relating to epidemic diseases are referred to only in that Act and not in this bill.

National Cervical Screening Programme

The provisions relating to the National Cervical Screening Programme have been carried forward from the Health Act 1956. We recommend an amendment to require that a hard copy of their own information on the register be provided to women for safekeeping if they cancel their enrolment on the programme.

We recommend an amendment to make it clear that the list of information that must be provided to women by any person providing a colposcopic procedure does not limit any obligation to provide information that arises under any other enactment or rule of law.

Part–Non-communicable diseases

This Part authorises the Director-General to issue non-binding codes of practice and guidelines to address risk factors associated with non-communicable diseases such as cancer, cardio-vascular disease, diabetes, or mental illness. The bill also provides for the making of regulations by the Governor-General by Order in Council to reduce or help reduce risk factors associated with non-communicable diseases.

Three-quarters of the submitters mentioned non-communicable diseases and 40 percent focused on this issue, especially on clause 374 (x). Most of the supportive submissions came from the health sector, researchers, non-governmental organisations, and the sports and recreation sector. Submissions that opposed these measures came mainly from the food industry, and advertising, retail, and media interests. However, a number of them said they would accept a regulation-making power provided that it was explicitly a back-up or last resort provision only.

The majority of us believe it is essential that a major piece of public health legislation address non-communicable diseases which are the major public health issue of our time. We have recommended a number of amendments to address submitters’ concerns in this area.

The majority of us recommend that the regulation making provision, in clause 374, be moved into Part 3 of the bill from Part 8. We recommend amendments so that regulation could be recommended by the Minister of Health only if the Minister were satisfied that a code of practice or guideline that had been in place for at least two years had not made significant progress towards achieving its objective. We recommend a requirement that the Minister be satisfied that progress is more likely to be made by means of regulations than by alternative means. We also recommend that provisions be tightened to require codes of practice to state objectives and targets or measures against which progress could be assessed, and that consultation by the Minister be required if no significant progress in achieving their purpose is apparent. We recommend that the consultation requirement be strengthened so that the Director-General and the Minister must also consult with consumer representatives.

We also recommend an amendment to make it clear that codes of practice, guidelines, or regulations could relate to the content of published or broadcast material only as regards the ways in which goods, substances, or services were advertised, sponsored, or marketed; or the information to be given to consumers in connection with any advertising, sponsorship, or marketing, or on any packaging or labelling.

Part 4–Management of conditions posing health risks

Part 4 provides a framework for the management of conditions which pose public health risks. It is principle-based with a preference for the least restrictive measures needed to achieve the objective of minimising the health risk posed by an individual. We believe that the rights of an individual are appropriately balanced against the rights of the community to be protected. We recommend amending the bill to require that a person must be informed in the way that he or she is most likely to understand.

We recommend an amendment to provide for any court hearings to be held in private, unless the Judge decides it is in the public interest to hold an open hearing. We also recommend that the court may appoint a lawyer to act for individuals under 16.

We recommend an amendment to allow medical officers of health to direct individuals not to attend early childhood centres, as well as other educational institutions.

Part 5–Public health role of territorial authorities

Territorial authorities have extensive powers and duties under the Health Act 1956, principally in relation to environmental health, meaning public health matters related to the physical environment, such as sewage and crematoria. They employ environmental health protection officers to identify and abate nuisances. The bill intends that the same powers and duties should continue, with some minor modifications.

Because territorial authorities have an important role in public health matters we authorised our advisers to consult Local Government New Zealand about issues raised by submitters and any proposed amendments.

The Minister has an important power to direct territorial authorities to do certain things in respect of sanitary services. Some submitters argued that this power cut across the Local Government Act 2002 and could have serious funding implications for Long Term Council Community Plans. We were advised that the power is very infrequently used, and only in rare cases where an authority has seriously neglected its sanitary responsibilities. The majority of us recommend that this power be retained, but that the ability to direct that sanitary services be included in the Long Term Council Community Plan process is removed.

We recommend that the Minister be required to consult a territorial authority on the time within which the authority must submit proposals for the planning and construction of a sanitary service. We also recommend the inclusion of provisions for the Director-General to modify a proposal developed by a territorial authority, or make a proposal should a territorial authority fail to submit one.

Nuisance is defined in clause 166 as an activity or state of affairs that is, or is likely to be, injurious to public health. Many submitters objected to the removal of the word “offensive” from the definition of “nuisance”. We recommend that it be included, but qualified to the effect that an activity or state of affairs would not be offensive unless reasonable persons in the area would regard it as unacceptable.

Certain activities can present a risk to public health. We are recommending amendments to make it clear that a prior statutory determination—such as a resource consent under the Resource Management Act 1991 to carry out a specific activity—would not necessarily preclude action under the Act to mitigate a health risk, while ensuring that consent holders did not have to relitigate matters already addressed when the consent or other statutory determination was granted.

A number of submitters raised concerns about the significant overlap between the bylaw provisions in the bill and the provisions in the Local Government Act 2002 that enable the passing of bylaws to protect, promote, and maintain public health and safety. We agree that it is unnecessary for the bill to include these bylaw provisions, and recommend that they be deleted. However, we consider it important to retain the requirement for territorial authorities to consult DHBs.

Part 6—Regulated activities

Part 6 provides for the use of instruments and mechanisms regarding regulated activities to prevent, reduce, or eliminate risks to public health. It provides for a range of approaches, including consents, and assessment of compliance, depending on the nature of the activity and the extent of the risk.

A number of submitters recommended updating or adding to the list of regulated activities. Some found the inclusion of currently regulated activities in Schedule 3 confusing, and thought this meant that those activities would be immediately subject to the provisions in the bill. We consider that a list of activities is not necessary, as specific regulations would indicate which activities were regulated. We therefore recommend the deletion of Schedule 3.

We recommend the inclusion of an explicit requirement for consultation before the Minister may recommend the making of regulations regarding an activity that poses a health risk.

Subpart 6 requires a consent authority to keep a record of the consents it issues. To protect the privacy of consent holders, we recommend an amendment to clause 235 to remove the requirement for contact details to be recorded and made publicly available. The bill allows consent authorities to appoint assessors to undertake assessments of regulated activities. To avoid confusion we recommend an amendment to make the ability to appoint assessors contingent on empowering regulations and to clarify the jurisdiction of the assessor.

Part 7—Emergencies and border health

General emergency powers

Clause 265 sets out when emergency powers may be exercised by a medical officer of health. We recommend an amendment to clause 266 (1) (j) (ii) to make it clear that a person could be quarantined or isolated, until he or she was no longer a risk to public health, after undergoing preventive treatment such as vaccination.

Redirection of aircraft

We recommend the insertion of a new subclause to require the medical officer of health to ensure that a redirection order would not threaten the safety of a redirected aircraft.

Border health

We recommend an amendment to the definition of “examination involving non-invasive procedures” to make it clear that, for the purposes of examinations conducted for screening at the border only, blood sampling can be regarded as a minimally invasive procedure.

While an individual would retain the right to refuse to provide a blood sample, he or she would be liable to be quarantined while they posed a risk to public health.

Persons liable to quarantine

We recommend an amendment to clause 285 to clarify that a person who has been exposed to a quarantinable condition within its known incubation period before his or her arrival in New Zealand may be liable to quarantine.

Children and people under disability

We recommend that clause 294 be amended to make it clear that the powers in this clause are related to a person’s capacity to understand directions or to provide the necessary information. Those with responsibility for people with reduced or limited capacity, including children, would be required to ensure that those in their care complied with directions under this part.

We also recommend the deletion of the terms “custody” and “under disability” as these terms are not in common usage.

Ship sanitation certificates

We recommend that clause 308 be redrafted to ensure that it aligns with Article 39 and Annex 3 of the International Health Regulations 2005, to which New Zealand is signatory.

Part 8—Miscellaneous provisions

Health impact assessments

We have considered various submissions on the inclusion of provisions regarding health impact assessments in the bill. The majority of us recommend that the purpose of health impact assessments should also include how a proposed action could promote and protect public health.

Powers of entry and inspection

We recommend an amendment to clause 326 to give environmental health officers the powers of entry and inspection in relation to their Part 6 (regulated activities) functions.

Search warrant

We recommend an amendment to the definition of “dwellinghouse” in clause 327, so clause 327 would allow authorised personnel to enter a dwellinghouse or the buildings of a marae with a warrant. A warrant would not be required to enter the land of a dwelling or a marae.

Examination of children

We recommend an amendment to clause 328 (5) (b) to make it clear that children under 16 years are able to consent to examination, testing or screening where they have the capacity to understand the nature and consequences of the examination, testing or screening, and are able to communicate that consent.

Compliance orders

We recommend an amendment to clause 329 (4) (b) to extend the power for an environmental health officer to issue a compliance order regarding his or her Part 6 (regulated activities) functions. Currently such officers have this power only in relation to Part 5 functions. We also recommend an amendment to clause 329 (3) to ensure that a timeframe is specified in the compliance order.

Regulations about public health generally

We heard a range of views on the regulation making powers related to public health set out in clause 374, and in particular subclauses (r) and (x).

We have considered the evidence before us and recommend no substantive change to clause 374 (r). There was concern this clause could be used to regulate things that relate to “lifestyle” diseases such as obesity or diabetes. The clause updates and expands an existing regulation power contained in section 117 (s) of the Health Act 1956, which provides for the regulation of products known to pose a risk to public health, such as heavy metals in graphic materials or nitrosamines in infant feeding teats. We recommend a clarifying amendment to ensure the regulation making power is used only as intended.

The majority of us recommend that the regulation making power in clause 374 (x) be moved to Part 3. We also recommend further amendments in Part 3 to clarify the relationship between non-binding codes of practice or guidelines and the regulations.

Special provisions as to regulations

We recommend an amendment to clause 377 to require the Environmental Risk Management Authority to be consulted regarding manufactured articles that are hazardous or include hazardous substances. We note that the Hazardous Substances and New Organisms Act 1996 enabled the authority to issue standards for manufactured articles that contain, incorporate or include hazardous substances.

Recommendations from the Regulations Review Committee

Clause 88 provides for a review of Part 3 three years after the commencement of the Act, and allows the Governor-General to extend the reporting-back date on one or more occasions. We recommend an amendment to clause 88 to limit the extension of the reporting-back date to no more than two occasions.

Clause 378 allows regulations to be made for transitional purposes as the bill comes into effect, but does not include expiry provisions. We are satisfied that explicit expiry provisions are not needed because these regulations would expire on the date stated in clause 379. This is because their only possible empowering provision (clause 378) would have expired.

We note that the regulations referred to in clause 380 will not be revoked with the expiry of clause 380, and some may have ongoing application under section 20 of the Interpretation Act 1999.

Minor amendments

We recommend a number of minor amendments to clarify the intention of the bill, to address omissions or drafting errors, or to make other improvements.

Health districts

We are aware of a recommendation to review the boundaries of DHBs with regard to iwi boundaries and Māori electoral boundaries, but this is outside the scope of this bill. We understand that some Māori health providers have difficulty providing services to their communities as they have to negotiate with more than one DHB. Some of us believe that this places unfair additional costs upon these providers. To this end, the majority of us urge the Government to give consideration to reviewing the boundaries of district health boards.

New Zealand National minority view

Introduction

The Health Act 1956 would benefit from modernising and updating. However, National Party members of the committee believe that some parts of this Public Health Bill, in the name of protecting public health, unduly interfere with individual rights, and create unnecessary cost and bureaucracy. This ideological agenda creates controversial clauses that have attracted a considerable numbers of submissions.

Forced disclosure of health information

The bill, in requiring disclosure of health information, creates a provision for non-Government health care providers to mandatorily supply information to the Ministry of Health, beyond what, if any, is already voluntarily provided. This has potential to create significant costs for these non-Government providers (such as private hospitals, general practices and Māori health providers) and funders (such as health insurers) without reimbursement. For example, the cost to private hospitals of employing specialist coding staff to supply surgical data by purchase unit or diagnostic related group to the ministry will not be insignificant. The ministry advisers even acknowledged that it may take considerable time for providers to collate requested information.

Providers and funders could be required to provide confidential financial and business information in the name of “advancing health knowledge, health education or health research”.

National Party members believe this is a cavalier attitude to private healthcare businesses and imposes costs which could have little health benefit; costs that will be passed on to patients. We believe that private providers should have input into what information they provide and that they should be able to decline on the basis of significant costs, in a manner similar to provisions under the Official Information Act 1982.

Not-so-voluntary codes of practice

The bill contains provisions that can best be described as venturing into the realm of “nanny state”. The bill proposes that “voluntary” codes of practice may be established by the Director-General to minimise non-communicable disease (eg. obesity) risk factors. These codes can even be established without the cooperation or willingness of the affected sector. The codes can cover product content, accessibility to different parts of the population, advertising, promotion, marketing, sponsorship, and labelling.

These “voluntary” codes can be converted into compulsory regulations—in whole or part—if the Minister of Health decides that the voluntary codes have not worked. National members believe this is regulation by stealth.

Ministry officials advised the committee that codes of practice could cover such things as school lunch boxes, physical activity (whether to travel on public transport or walk), alcohol, advertising of food to children, marketing of infant formula, or transfats.

The Government should have a commitment to working in co-operation with sector groups to make progress. Significant progress has been made working in partnership, for example, with the food industry and television broadcasters over recent years. The Government’s “Portrait of Health” survey of more than 17,000 adults and children found no increase since the 2002/3 survey in obesity rates for children and for Māori adults. And the proportion of adults who are overweight has remained stable at just over 36 per cent.

The bill’s “voluntary” and compulsory guidelines can regulate the way various goods and products are “advertised, sponsored or marketed” (whether directly or indirectly). This has potential to impact on the editorial content of publications and broadcast media. We do not believe the Government amendment in clause 83 (3) addresses this concern.

The current co-operative approach with industry and others is undermined and undervalued by the direct pathway to regulation that this bill proposes. The Government cannot claim the current approach is failing.

Any effective long-term approach to addressing the health implications of lifestyle decisions must respect people’s rights to make their own choices. New Zealanders do not want a Government taking an approach that creates hostility by patronising people about how to live their lives.

Instead, policy should engage people by informing their understanding of the healthy options available to them and the consequence of their lifestyle decisions.

We note that the Government has amended clause 374 (r) which would have allowed the Ministry of Health to control the importation of food that may contribute to non-communicable diseases such as obesity.

Costs to Ratepayers and Consumers

A new form of bureaucracy will be introduced to many businesses —the Public Health Risk Management Plan. These will be required of any person carrying out a so-called regulated activity, such as a hairdresser. These plans must identify the risks to public health that may arise from the activity, identify how those risks will be prevented or minimised, and set out a timetable for how they will be managed.

Every Public Health Risk Management Plan must be submitted to an assessor for approval. The Director-General of Health will maintain a national database of consents granted as a result of a Public Health Risk Management Plan. After all this work an applicant will be given a certificate to display on their wall!

Local Government told the committee that these provisions will apply to low risk businesses, are unnecessary and that the bill is total over-kill in this area. They say this is a duplication of the consent process.

The National Party is concerned that despite consultation, Local Government New Zealand and individual territorial authorities remain concerned about significant features of the bill. It creates powers for the Director-General of Health to over-ride decisions made at territorial authority level related to sanitary services, which has the potential to cut across extensive community planning and consultation. We have been advised this risks a financial cost to ratepayers that is beyond the Local Government Act 2002 intentions. We share the concern of territorial authorities about the ability this creates for central government to foist central government responsibilities, priorities, and therefore costs onto ratepayers.

The National Party members are concerned that Health Impact Assessments—which are voluntary and potentially compulsory in different parts of the bill—are expensive to conduct. There was concern from submitters that should the Director-General of Health create compulsory guidelines that promote wider use of this tool, the cost may fall on territorial authorities and therefore ratepayers. Health Impact Assessments may also be regulated as part of compulsory codes of practice, and this in turn will add costs to consumers.

Treaty Clause

The National Party sees the insertion of a Treaty of Waitangi clause in this part of the bill as unnecessary and inappropriate. The bill already requires authorities to consult and work positively with various communities, including Māori.

Green Party minority view

The Green Party strongly supports provisions in this bill, which will enable the Minister of Health to issue regulations under certain defined circumstances, to reduce the risk associated with non- communicable disease. Given that poor diet is the leading cause of preventable illness and disease, it is vital that we take steps to create an environment which encourages healthy eating in New Zealand. In this context it seems unbalanced that the legislation provides virtually unlimited powers to prevent communicable diseases; but such a tightly constrained capacity to respond to, and seek to prevent, non-communicable diseases.

The Green Party remains concerned that powers in this bill (e.g. 266 (j) (ii)) could allow persons who are unvaccinated and are considered to pose a risk to public health, to be detained indefinitely in quarantine. We do not consider it fair or logical to assume that because a person is not vaccinated, they pose a threat to public health. This is particularly the case since it is accepted that a percentage of persons who are vaccinated do not develop an immunity to the disease they are vaccinated against.

We are concerned that the powers in this bill could be used to discriminate against unvaccinated people, could breach the New Zealand Bill of Rights Act 1990 and could lead to future civil rights violations.

Appendix

Committee process

The Public Health Bill was referred to the committee on 11 December 2007. Public submissions were called for with a closing date of 7 March 2008. We received and considered 204 submissions from interested groups and individuals. We heard 96 submissions, which included holding hearings in Auckland.

We received advice from the Ministry of Health.

Committee membership

Sue Kedgley (Chairperson)

Lesley Soper (Deputy Chairperson)

Dr Jackie Blue

Dr Jonathan Coleman

Jo Goodhew

Hon Luamanuvao Winnie Laban

Jill Pettis

Hon Tony Ryall

Barbara Stewart

Hon Tariana Turia

Louisa Wall

Key to symbols used

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Hover your cursor over an amendment for information about that amendment. Download the PDF version to see this information in a form that can be printed out.

Hon David Cunliffe

Public Health Bill

Government Bill

177—2

Contents

Commentary
Key
1Title
2Commencement
3Purpose
4Interpretation
5Act to bind the Crown
6Functions of Minister
7Functions of Director-General
8Powers of direction
9Form of direction to organisation
10Delegation of functions or powers
11Director-General must produce annual report on current state of public health
12Health protection officers and medical officers of health
13Exercise of certain powers
14Health districts
15Responsibility for public health in areas outside jurisdiction of local authorities
16Director-General may act as or must appoint medical officer of health
17Functions of Director of Public Health
18Director of Public Health may provide advice or reports to Minister
19Public health functions of DHBs
19AReporting functions of medical officers of health
19BMedical officer of health may provide advice or reports to DHB
19CGeneral powers and duties of territorial authorities in respect of public health
19CACollaboration between local authorities and DHBs
19DDuty of territorial authority to have environmental health officers
19EProvisions governing appointments
19FFunctions of environmental health officers
20Interpretation
21Disclosure of health information
22Duty to provide health information
23Duty to provide information for purposes of blood collection
24Communication of information for diagnostic and other purposes
25Anonymous health information
26Regulations as to retention of health information
27Interpretation
28Inspection of records to verify compliance with subsidy authorisation or subsidy claim
29Inspection of provider records to verify compliance with the pharmaceutical schedule
30Contravention of section 28 or 29 an offence
31Duty to report matters that constitute public health risk
32Medical practitioner or specified person must notify notifiable condition
33Laboratory must notify notifiable condition
34Laboratory must notify notifiable contaminants
35Person who obtains result of test of sample overseas must notify contaminant
36Notifiable conditions in animals
37Power of Governor-General to amend schedules
38Temporary specification of notifiable condition or epidemic disease
39Duty of confidentiality and authorised disclosure of identifying particulars obtained from report or notification
40Medical officer of health may authorise disclosure of notification information
41Duty to provide information regarding obligations to report and notify
42Offence to fail to report or notify as required
43Regulations
44Purpose
45Interpretation
46Appointment of persons to operate NCSP
47Objectives of NCSP
48Enrolment in NCSP
49Duties of NCSP manager that relate to enrolled women
50Procedure to prevent or cancel enrolment in NCSP
51Duties of NCSP manager when women cancel enrolment in NCSP
52Procedure to re-enrol in NCSP
53Certain information held by NCSP must not be disclosed
54Delegation of functions and powers
55Duties of persons taking specimens for screening tests
56Duty of persons performing colposcopic procedure
57Duty of laboratories where specimens are analysed
58Establishment of NCSP review committee
59Work of review committee
60Review committee’s access to information
61Report by review committee
62Duty of Director-General to report
63Meaning of evaluate
64Director-General may designate screening programme evaluators
65Criteria for designating employees of Ministry
66Criteria for designating non-employees of Ministry
67Power of screening programme evaluators to access specimens and health information
68Duties of screening programme evaluators
69Duties of persons to whom evaluation material is supplied by screening programme evaluator
70Screening programme evaluator may publish non-identifiable information obtained during evaluation
71Duty of health practitioners
72Duty of persons who hold specimens
73Duty of hospitals
74Screening programme employees may retain, access, use, and disclose information to perform functions
75Regulations
76Incorporation of standards by reference in regulations
77Application of Standards Act 1988 not affected
78Offences under this subpart
79Interpretation
80Principles
81Director-General may issue codes of practice or guidelines
82Prior consultation required
83What code of practice or guidelines may provide
83ACode of practice must state objectives and targets or measures
84Codes of practice and guidelines to avoid overlap with enactments
85Compliance with code of practice or guidelines may be advertised with permission of Director-General
86Incentives for compliance with codes of practice or guidelines
87Codes of practice and guidelines not legally enforceable
88Report to Minister
88AConsultation by Minister if no significant progress in achieving objective of code or guidelines
88BMinister may recommend regulations
88CRegulations
89Application
90Principles to be taken into account
91Least restrictive alternative
92Respect for individuals
93Individual to be informed
94Proceedings under this Part in District Courts to be heard by Family Court Judges, if practicable
94AProceedings under this Part not open to public
94BCourt may appoint lawyer to act for individuals under 16
95Directions that may be given to manage health risk posed by condition to which this Part applies
96Duration of directions
97Direction for medical examination
98Direction requiring contacts to stay in specified place
99Directions in respect of educational institutions
100Repeated directions may be given
101Directions may be varied or rescinded
102Written directions and notices to be served on individual
103Appeal against direction
104Duty to comply
105Force not permissible
106Medical officer of health may make urgent health risk order
107Duration of urgent health risk order
108Matters that Court may take into account in assessing health risk
109Relationship between directions and court orders
110Prior consultation with individual and individual’s family or whanau
111Case conferences
112Application for health risk order
113Health risk order
114Order may impose certain requirements on individual
115Duration of order or requirements
116Health risk order may be extended
117Order for medical examination
118Court may make health risk order contingent on examinations proving positive
119Order for contacts
120Court may cancel or vary orders
121Medical officer of health and individual may agree on variation
122Appeals to High Court
123Appeals to Court of Appeal
124Enforcement of order by medical officer of health
125Offence not to comply with order
126Person must not recklessly spread notifiable disease or other notifiable condition
127Defences
128District Court may make residence order
129Application for residence order
130Help Action under other enactment
131Prior consultation by medical officer of health
132Case conferences
133Duration of residence order
134Residence order may be extended
135Court may cancel or vary residence order
136Appeals
137Interpretation
138Purpose of subpart
139What contact tracing involves
140Meaning of relevant officer
141Appropriateness of contact tracing
142Individual with condition to which this Part applies to provide certain information
143Consideration as to whether contact tracing can be undertaken by individual
144When relevant officer may undertake contact tracing
145Medical officer of health may direct certain persons to provide information
146Duty of confidentiality
147Medical practitioner or medical officer of health may delegate powers, duties, and functions
148Status of delegations
149Offence to fail to comply with direction to provide required information
150Interpretation
151Medical practitioner or prescribed person may disclose certain matters to close associates
152Medical practitioner or prescribed person may consult with medical officer of health
153General powers and duties of territorial authorities in respect of public health
154Regional Councils may be required to provide Director-General or DHB with reports
155Territorial authorities may be required to provide DHBs with reports
156Provisions relating to reports
157Duty of territorial authority to have environmental health officers
158Provisions governing appointments
159Functions of environmental health officers
160Sanitary services defined
161Matters to be considered before directions given
162Minister may direct territorial authority about sanitary services
162AProposals for complying with direction under section 162
163Grants and subsidies for refuse disposal works, sewerage works, and water supplies
164Establishment of mortuaries and disinfecting stations
165Duties of local territorial authorities as to burials
166Nature of nuisance
167Duties of territorial authority
168Inspections to ascertain existence of nuisance
169Offence to cause or permit nuisance
170Provisions of this subpart do not limit other rights
171Rectification orders
172Buildings or dwellinghouses unfit for human occupation
173Effect of order under section 172
174District Court Judge may view place and summon owner or occupier
175Breach of order is offence
176On default of owner, territorial authority must carry out work
177Power to stop nuisance without notice
178Interim closure of dwellinghouse posing serious risk to public health
179Nuisance caused by act or default outside district
180Recovery of expenses and costs of territorial authority
181Inadequate response to nuisance representing significant health risk
182Medical officer of health may take enforcement action
183Determinations permitting activities not affected
183Authorised activities
184Public health bylaw defined
185Consultation required before territorial authority makes public health bylaw
186Bylaws
187Application of other enactments to bylaws
188Local Government Act 2002 amended
152AEffect of Public Health Act 2007 on bylaws made under this ActPublic health bylaws
189Review of territorial authorities
190Non-performance by territorial authority
191Order for mandamus
192Action under certain other enactments to be preferred
193Bylaws under this Part prevail over other bylaws
194Objective
194AAThis Part does not apply merely because of continuation of existing regulations
194AAExpiry of section 194AA
194AMinister may recommend making of regulations
194BRegulations in respect of activities
194CIncorporation by reference
195Duty to comply with this Part
196Taking of all practicable steps to prevent risks to public health
197Consent holder must advise relevant consent authority of important changes
198Persons carrying on regulated activities must assist assessors and designated officers in exercise of powers
199Periodic compliance assessments of operators of activities
200Application of subpart
201Person proposing to carry on regulated activity must apply to relevant consent authority
202Application to be accompanied by payment and public health risk management plan, if required
203Consent authority to obtain report and respond to application within 20 working days
204Grant of application
205Provisional consent may be granted
206Advice about non-compliance and requests for further information
207Renewal of consent
208Amendments to public health risk management plan may be required on renewal
209Applicant for consent or renewal must advise consent authority of important changes
210Administrative charges
211Mandatory cancellation
212Discretionary cancellation
213Steps to be taken before consent cancelled
214Surrender of registration consent
215Review of refusal or cancellation
216Appointment of reviewer and conduct of review
217Reconsideration by consent authority
218Right of appeal
219Notice of right of appeal
220Decisions to have effect pending determination of appeal
221Procedure on appeal
222Court’s decision final
223Court may refer matter back for reconsideration
224Orders as to costs
225Appeal on question of law
226Director-General may must publish guidelines
227When approved public health risk management plan required
228Contents of public health risk management plan
229Public health risk management plan to be approved by assessor
229APublic health risk management plan to be approved by consent authority
230Duration of plans
231Review and renewal of plans
232Records
233Director-General may keep nationwide record
234Form of record
235Information to be recorded
236Amendments of records
237Cancellation, etc, of entries
238Inspection of records
239Minister may recommend amendment to Schedule 3
240Recommending additions to Schedule 3
241Recommending removals from Schedule 3
242Amendment to Schedule 3
243Regulations in respect of regulated activities
244Incorporation by reference
245Appointment of assessors
245AGeographical areas in respect of which assessors appointed
246Surrender of appointment
247Directory of assessors
248Matters to be contained in directory
249Territorial authority must supply information on assessors to Director-General
250Functions of assessors
251Accountability of assessor for performance of functions
252Duty of assessor to disclose potential conflict of interest
253Powers of assessors
254Restrictions on entry
255Requirement for warrant to enter dwellinghouse or marae
256Review of decisions of assessors
257Consent holder must not replace assessor without consent of consent authority
258Regulations
259Minister may declare emergency
260Duration of declaration by Minister
261Minister may amend or revoke declaration
262Minister must review need for declaration
263Health emergency declared by Order in Council
264When emergency powers may be exercised
265State of emergency under other enactments
266General emergency powers
267Safeguards for persons isolated or subject to quarantine under section 266(1)(g)
268Emergency power relating to redirection of aircraft
269Emergency powers relating to closure of premises and restriction of association
270Condition relating to orders made under section 269
271Powers of medical officer of health to requisition things
272Power of entry and inspection
273Power to require information
274Non-compliance with requisition offence
275Power of members of police to assist medical officer of health
276Offences relating to obstructing medical officer of health or people assisting medical officer of health
277Medical officer of health may cause sanitary works to be undertaken
278Priority for medicines
279Offences against sections in this subpart
280Interpretation
281Director-General may designate points of entry
282Places of inspection for ships
283Affected places
284Ships and aircraft liable to quarantine
285Persons liable to quarantine
286People liable to quarantine to comply with directions and supply information
287Detention of craft and people for inspection
288Lifting of detention of craft
289Powers and duties of medical officer of health or health protection officer in relation to quarantinable conditions
290Surveillance of certain people liable to quarantine
291Grounds of appeal
292Notice of appeal
293Powers of District Court on appeal
294Children and people under disability with incapacity
295When liability of craft to quarantine ceases
296When liability of persons to quarantine ceases
297Restrictions applying while craft liable to quarantine
298Quarantine signal for ship
299Inspection of craft liable to quarantine
300Ship’s declaration of health
301Aircraft declaration of health
302Ship arriving from affected place
303Ship with quarantinable condition on board
304Grant of pratique
305Medical officer of health or health protection officer may order craft to another port or airport
306Affected baggage, cargo, or stores
307Decontamination, disinfection, and fumigation of craft
308Ship sanitation certificates
309Power to board any ship and inspect
310Persons with quarantinable condition about to leave New Zealand
311Persons with quarantinable condition about to leave New Zealand to supply information and comply with directions
312Inspection of ship or aircraft departing from New Zealand
313Inspection of points of entry
314Power to obtain information about craft, freight, and passengers
315Offences involving ships or aircraft
316Offences against sections in this subpart
317Strict liability and defence to offences under section 316
318Penalties for offences under section 316
319Health risk orders
320Power to arrest without warrant
321Subpart 1 and this subpart operate independently
322Regulations about risks to public health at border
323Purpose of health impact assessments
323Purpose of health impact assessments
324Health impact assessments
325Copy of health impact assessment must be supplied to Director-General
326General power of entry and inspection
327Requirement for warrant to enter dwellinghouse or marae
328Examination of children at early childhood centres and schools
329Medical officer of health or health protection officer or environmental health officer may issue compliance order
330Compliance with compliance order
331Form and content of compliance order
332Appeals
333Stay of compliance order pending approval
334Variation and cancellation of compliance order
335Appeals against decision on change or cancellation of compliance order
336Failure to comply with compliance order is offence
337Incorporation of material by reference into regulations and compliance documents
338Effect of amendments to, or replacement of, material incorporated by reference
339Proof of material incorporated by reference
340Effect of expiry of material incorporated by reference
341Requirement to consult
342Access to material incorporated by reference
343Acts and Regulations Publication Act 1989 not applicable to material incorporated by reference
344Application of Regulations (Disallowance) Act 1989 to material incorporated by reference
345Application of sections 346 to 351
346Application for search warrant
347Mode of application for search warrant
348Form and content of search warrant
349Transmission of search warrant
350Retention of documents
351When search warrant is executed
352Application
353Entry and search powers
354Powers of persons called to assist
355Powers and duties of person exercising entry and search power
356Inventory of items seized
357Compliance with certain provisions may be deferred in certain circumstances
358Further extension to, or dispensation from, obligation to comply with certain provisions
358AEntry of defence areas
359Evidence of authority of medical officer of health or health protection officer
360Building Act 2004
361Protection of persons acting under authority of Act
362Obstruction of officers
363Compensation for property requisitioned or destroyed or damaged
364Director-General may order post-mortem examination
365Attendance of medical officer of health at meetings of local authorities
366Expenses of local authorities
367Service of documents
368General penalty for offences
369Strict liability
370Defences
371Additional penalty for certain offences for commercial gain
372Liability of principal for acts of agents
373Offences punishable on summary conviction
374Regulations about public health generally
375Regulations about needles and syringes and related products
376Regulations about housing improvement and overcrowding
377Special provisions as to regulations
378Transitional regulations
379Expiry of section 378
380Regulations and other enactments having effect under this Act
381Expiry of section 380
382Bylaws
383Existing health districts continue
384Director of Public Health continues in office
385Medical officers of health continue in office
386Health protection officers continue in office
387Other designated persons continue in office
388Environmental health officers continue in office
389Personal information
390Civil proceedings relating to nuisances
391Requirements to clean, repair, or close premises
392Consents relating to offensive trades and stock saleyards
393Specified requirements
394Tuberculosis Act 1948
395Ongoing matters under Part 3 or 4 of Health Act 1956
395AAmendments to Epidemic Preparedness Act 2006
395BInterpretation
395CInserting references to epidemic disease in principal Act
395DNew sections 27 and 28 and Schedule added
27Power of Governor-General to amend Schedule
28Temporary specification of epidemic disease
396Amendments to New Zealand Public Health and Disability Act 2000
397Repeals and revocations
398Consequential amendments
Legislative history

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Public Health Act 2007.

2 Commencement

(1)

This Act comes into force on a date to be appointed by the Governor-General by Order in Council.

(2)

However, if this Act has not earlier been brought into force, it comes into force on the day that is 1 year after the date that it receives the Royal assent.

Part 1 Preliminary provisions, roles and responsibilities

Subpart 1—preliminary provisions

3 Purpose

(1)

The purpose of this Act is to improve, promote, and protect public health in order to help attain optimal and equitable health outcomes for Māori and all other population groups.

(2)

The features of this Act that are designed to achieve its purpose include provisions—

(a)

setting out clear and specific responsibilities for the identification and effective management of risks to public health (for example, by the prevention, investigation, and control of those risks), and in particular, risks to public health arising from—

(i)

communicable conditions; and

(ii)

non-communicable conditions; and

(iii)

the environment; and

(b)

setting out a structure that provides for appropriate risk identification, risk assessment, and reporting (locally, regionally, and nationally), in order to prevent, reduce, or eliminate risks to public health; and

(c)

aiming to reduce health inequalities by improving health outcomes for Māori and other population groups; and

(d)

enabling regulations to be made controlling specified activities that pose a risk to public health; and

(e)

placing responsibilities on territorial authorities to improve, promote, and protect public health within their districts (including the control of nuisances and the provision of sanitary services); and

(f)

imposing obligations on certain persons and agencies to provide accurate, comprehensive, and timely information on notifiable conditions and notifiable contaminants and other conditions posing a health risk; and

(g)

allowing the communication of information referred to in paragraph (f) in an appropriate form to assist in the management of health risks; and

(h)

allowing temporary health emergencies to be declared by the Minister of Health, or by regulations under this Act, to contain and manage a serious risk to public health; and

(i)

enabling measures to be undertaken in relation to craft, passengers, and goods entering or departing from New Zealand in order to—

(i)

minimise, prevent, or contain risks to public health; and

(ii)

comply with New Zealand’s obligations under the International Health Regulations (2005) promulgated by the World Health Organization.

(3)

In seeking to achieve its purpose, the provisions of this Act reflect the need to—

(a)

take into account concerns by Māori in relation to public health and consult with Māori in developing and implementing public health policies and measures:

(ab)

recognise that the mechanisms provided for in Part 3 of the New Zealand Public Health and Disability Act 2000 with respect to the Treaty of Waitangi (being mechanisms to enable Māori to contribute to decision-making on, and to participate in the delivery of, health and disability services) apply in respect of public health functions of DHBs under this Act:

(ac)

take into account the well-being and protection of population groups vulnerable to risks to public health, including, without limitation, children, Pacific peoples, and people with disabilities:

(b)

protect public health when managing health risks where there is uncertainty or incomplete information about health effects:

(c)

ensure the exercise of powers under the provisions of this Act involves a response that is in proportion to the nature and seriousness of the risk to public health:

(d)

complement other legislation that seeks to improve, promote, and protect public health.

4 Interpretation

(1)

In this Act, unless the context otherwise requires,—

aircraft has the same meaning as in section 2 of the Civil Aviation Act 1990

airport means an aerodrome (as defined in section 2 of the Civil Aviation Act 1990)

appropriate authority means—

(a)

a medical officer of health; and

(b)

any other person or organisation specified as an appropriate authority in regulations made under section 43

assessor means an assessor approved by the Director-General or a consent authority under section 245

case of a condition means an instance of a condition (not being a notifiable condition) in 1 person

cluster or outbreak means 2 or more cases of a condition (whether or not a notifiable condition) in a person or persons that occur within a short period of time or within a geographical area, whether or not those cases are causally connected

communicable condition means a condition that may be communicated to a person from a person, animal, insect, bird, reservoir, or vector, either directly or indirectly

condition includes—

(a)

diseases (whether communicable or not):

(b)

physical harm caused by chemical, radiation, or other toxic exposure

consent authority, in relation to a regulated activity of a particular kind, means a DHB or a territorial authority that may issue consents under section 204

contaminant means—

(a)

an organism pathogenic to humans:

(b)

any substance or other agent that is harmful to humans

contamination means the presence of an infectious or toxic agent or matter that may present a risk to public health

craft means an aircraft, ship, or other device or machine that can be used to carry or transport people or goods—

(a)

by air; or

(b)

on or under water

DHB means a District Health Board constituted under section 19 of the New Zealand Public Health and Disability Act 2000

Director-General means the chief executive or acting chief executive under the State Sector Act 1988 of the Ministry of Health

dwellinghouse means

(a)

any building, tent, caravan, or other structure or erection, whether permanent or temporary, that is used or intended to be used in whole or in part for human habitation; and

(b)

includes the land or any outbuildings and appurtenances belonging to, or usually enjoyed with, that structure or erection

dwellinghouse means any building, tent, caravan, mobile home, boat, or other structure or erection, whether permanent or temporary, that is used or intended to be used in whole or in part for human habitation

environmental health officer means a person appointed as an environmental health officer under section 153(1)(a)

epidemic disease means a disease specified in Part 2 of Schedule 1

epidemic notice means a notice under section 5(1) of the Epidemic Preparedness Act 2006

health impact assessment means a combination of procedures, methods, and tools

(a)

by which a proposal, policy, plan, strategy, project, rule, consent, standard, guideline, or programme is assessed as to the effect it is likely to have on the health of a population or part of a population and the distribution of the effects within the population; and

(b)

that indicates whether the thing assessed is likely to have a positive or negative effect on the health of the population or part of the population

health impact assessment means a combination of procedures, methods, and tools

(a)

by which a policy, plan, programme, or project is assessed as to the effect it is likely to have on the health of the general population or a community or a section of the general population or a community and the distribution of those effects; and

(b)

that indicates whether the effect on health is likely to be positive or negative

health practitioner has the same meaning as in section 5(1) of the Health Practitioners Competence Assurance Act 2003

health protection officer means a person appointed as a health protection officer under section 12(1)(b)

health risk means a substantial risk that 1 or more individuals who have a condition pose to the health of 1 or more other persons because of the condition, having regard to—

(a)

the nature of the condition, including, without limitation, the transmissibility and mode of transmission of the condition; and

(b)

the relevant circumstances of the particular case

health services has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

local authority has the same meaning as in section 5 of the Local Government Act 2002

medical examination means the examination or testing of a person for the purpose of determining whether the person has or is likely to have a condition, and includes—

(a)

the taking of a sample of tissue, blood, urine, or other bodily material for medical testing; and

(b)

any diagnostic tests required to detect the presence of a condition in a person

medical officer of health means the medical officer of health for a health district appointed under section 12(1)(a)

medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand (continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003) as a practitioner of the profession of medicine

Minister means the Minister of Health

Ministry means the Ministry of Health

National Immunisation Schedule means the schedule known as the National Immunisation Schedule of the Ministry of Health and for the time being approved by the Minister, being a schedule specifying a programme of vaccinations to promote immunity against the diseases specified in the schedule

notifiable condition means a condition specified in Part 1 of Schedule 1 as a notifiable condition

notifiable contaminant means a contaminant specified in Schedule 2 as a notifiable contaminant

owner, in relation to any land or premises,—

(a)

means the person for the time being entitled to receive the rent of the land or premises, whether on his or her own account or as the agent of or trustee for any other person, or who would be so entitled if the land or premises were let at a rent; and

(b)

includes any person for the time being registered under the Land Transfer Act 1952 as the proprietor of the land or premises

passenger, in relation to a craft, means any person in or on it, whether lawfully or unlawfully, who is not a member of its crew

point of entry

(a)

means a place in New Zealand into which persons, baggage, cargo, conveyances, and other goods enter New Zealand from overseas or leave New Zealand to go overseas; and

(b)

includes those services provided at that place to facilitate the entry of those persons or things into New Zealand or their departure from New Zealand

premises includes a ship or an aircraft

provider has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

public health means the health of all of—

(a)

the people of New Zealand; or

(b)

a community or section of those people

public health bylaw means a bylaw made under the Local Government Act 2002 or under any other enactment for the purpose of protecting, promoting, or maintaining public health or protecting the public from nuisance

public health risk management plan means a plan prepared under section 228

regulated activity means an activity that is described in Schedule 3 in respect of which regulations have been made under Part 6

relevant consent authority, in relation to the carrying on, or proposed carrying on, of a regulated activity, means the consent authority responsible for the area where—

(a)

the premises are located in which the activity is, or is to be, carried on; or

(b)

if the activity is of a type that is not carried on from fixed premises, the person carrying on, or proposing to carry on, the activity resides or, in the case of a body corporate or partnership, where the office or the principal office of the body corporate or partnership is located

reservoir means an animal, plant, or substance in which an infectious agent may live and whose presence may constitute a risk to public health

services has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

specified person means any person prescribed as a specified person in regulations made under section 43

territorial authority has the same meaning as in section 5 of the Local Government Act 2002

vector means an agent or animal that may transport an infectious living agent that constitutes a risk to public health.

(2)

In this Act, a reference to an individual who has a condition includes an individual who harbours the condition, even if the individual does not exhibit any of the symptoms of the condition.

5 Act to bind the Crown

This Act binds the Crown.

Subpart 2—Functions of Minister

6 Functions of Minister

(1)

The Minister has the function of ensuring the effective and efficient administration of this Act.

(2)

The Minister also has the functions set out in—

(a)

section 11(2) (presenting the annual report to the House of Representatives):

(b)

section 259 (which enables the Minister to declare a health emergency):

(c)

sections 260 and 261 (which enable the Minister to extend a health emergency, and amend or revoke the declaration of emergency):

(d)

section 262 (which requires the Minister to review the need for a health emergency declaration at regular intervals):

(e)

section 282 (which enables the Minister to designate places of inspection for ships):

(f)

section 283 (which enables the Minister to declare any place in New Zealand to be an affected place for the purposes of subpart 2 of Part 7):

(g)

any other provisions of this Act or regulations made under this Act that confer a function on the Minister.

Subpart 3—Functions of Director-General

Functions of Director-General

7 Functions of Director-General

(1)

The Director-General has the function of—

(aa)

improving, promoting, and protecting public health; and

(a)

overseeing and monitoring the implementation and enforcement of this Act throughout New Zealand (whether at local, regional district, or national level), and in particular, monitoring and overseeing—

(i)

the role of DHBs, medical officers of health, and health protection officers in enforcing this Act and exercising the powers conferred by it, at a regional district level; and

(ii)

the manner in which measures for human health protection are undertaken at the border; and

(iii)

prosecutions undertaken by bodies employing medical officers of health or health protection officers for offences against this Act or regulations made under this Act; and

(b)

ensuring that the role of the national focal point a central contact point in New Zealand for the purposes of carrying out New Zealand’s obligations under any international agreement concerning public health (national focal point) is carried out within the Ministry of Health; and

(c)

publishing statements relating to risks to public health, or to the performance or non-performance of any duty imposed on any person by or under this Act or any regulations made under this Act in order to protect the public; and

(d)

carrying out the other functions given to the Director-General by this subpart, any other provision of this Act, and any regulations made under this Act.

(2)

Every statement published under subsection (1)(c) is protected by qualified privilege.

(3)

Nothing in this section—

(a)

limits any other enactment or rule of law; or

(b)

limits the functions of the Director-General or of any other person or body.

8 Powers of direction

(1)

The Director-General may issue a direction in writing to any person carrying out functions or exercising powers under this Act or any regulations made under this Act (other than the Minister) about the way in which those functions or powers are to be carried out or exercised by that person.

(2)

Before issuing a direction under this section, the Director-General must—

(a)

consult with the person or persons to whom the direction would be issued; and

(b)

take account of any submission made by that person to the Director-General within a period specified by the Director-General (being a period that is reasonable in the circumstances).

(3)

No direction may be issued under this section that would require the disclosure of any information about an individual that would identify that individual.

(4)

As soon as practicable after issuing a direction under this section, the Director-General must publish it in the Gazette.

(5)

A person to whom any direction is issued under this section must ensure that it is complied with.

(6)

However, an action taken by a person to whom a direction is issued under this section is not invalid by reason only of a failure of that person to comply with the direction.

9 Form of direction to organisation

If the person required to carry out a function or exercise a power under this Act or any regulations made under this Act is not an individual but instead a department of State, local authority, DHB, or other body corporate, any direction under section 8 must be issued to the chief executive (however described) of the organisation.

10 Delegation of functions or powers

(1)

The Director-General may, either generally or particularly, delegate any functions or powers under this Act or any regulations made under this Act to any other person (being an employee of the Ministry or a DHB (an authorised person)).

(1)

The Director-General may, either generally or particularly

(a)

delegate any functions or powers under this Act or any regulations under this Act (other than the powers conferred by this section or section 8) to an employee of the Ministry; and

(b)

delegate any functions or powers under this Act (other than the powers conferred by this section or section 8 or the functions and powers conferred by section 12) to an employee of a DHB.

(2)

In any case where the Director-General has, under subsection (1), delegated any functions or powers to any authorised person, that person may, with the prior approval in writing of the Director-General, delegate any of those functions or powers that the Director-General approves to any other person.

(3)

Subject to any general or special directions given or conditions imposed by the Director-General, the person to whom any functions or powers are delegated under this section may exercise those functions or powers in the same manner and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.

(4)

The power of the Director-General does not limit any power of delegation conferred on the Director-General by any other Act (for example, section 41 of the State Sector Act 1988).

(5)

Every person purporting to act under any delegation under this section is, in the absence of proof to the contrary, to be presumed to be acting in accordance with the terms of the delegation.

(6)

Any delegation under this section may be made to an authorised person or to authorised persons of a specified class, or to the holder or holders for the time being of a specified office or specified class of offices held by authorised persons.

(7)

A delegation under this section does not affect or prevent the exercise of any function or power by the Director-General, or the responsibility of the Director-General for the actions of any person acting under the delegation.

Annual report on state of public health

11 Director-General must produce annual report on current state of public health

(1)

The Director-General must in each year give to the Minister a report on the current state of public health.

(2)

The Minister must present a copy of the annual report to the House of Representatives not later than the 12th sitting day of the House of Representatives after the Minister receives the report.

Compare: 1956 No 65 s 3C

Health protection officers and medical officers of health

12 Health protection officers and medical officers of health

(1)

The Director-General must appoint—

(a)

a number of medical practitioners who are suitably qualified and experienced in public health medicine as medical officers of health; and

(b)

in accordance with any applicable regulations, a number of other suitably qualified and experienced persons as health protection officers.

(2)

The number of persons appointed under subsection (1), must, in the opinion of the Director-General, be the number required to undertake those roles.

(3)

When the Director-General appoints a medical officer of health, the Director-General must, at the same time, determine the health district or districts within which the powers and duties of the officer may be performed or exercised.

(3)

When the Director-General appoints a medical officer of health,

(a)

the Director-General must, at the same time, determine the health district or districts within which the powers and duties of the officer may be performed or exercised; and

(b)

the medical officer of health may exercise powers and carry out duties in the district or districts determined under paragraph (a) and also in any district adjoining that district or those districts.

(4)

Despite any other enactment, the Director-General may appoint, as officers who have powers or duties under any other enactment, as many persons as, in the opinion of the Director-General, are required to undertake those roles.

(5)

An appointment by the Director-General under this section may be made on any terms and conditions that the Director-General considers appropriate.

(6)

A person who is appointed as a health protection officer, medical officer of health, or other officer must exercise or carry out his or her powers and functions in accordance with any directions given by the Director-General under section 8.

(7)

The fact that any appointed person exercises a power or carries out a function in any health district is evidence of his or her authority to do so.

Compare: 1956 No 65 ss 7A(1)–(6), 21

13 Exercise of certain powers

(1)

This section applies if, under any enactment, a reasonable belief is a prerequisite for the exercise of a power by a person appointed under section 12.

(2)

If this section applies, it is sufficient if the appointed person exercises that power—

(a)

at the direction of the Director-General or any other person appointed by the Director-General for the purposes of this section; and

(b)

at a time when the Director-General or other person authorised to give a direction held the belief that was a prerequisite in relation to the exercise of the power.

Compare: 1956 No 65 s 7A(7)

Health districts

14 Health districts

(1)

The Director-General may at any time, by notice in the Gazette, divide New Zealand or any part of New Zealand into health districts with any names and boundaries that the Director-General considers appropriate.

(2)

However, the boundaries of a health district—

(a)

must be fixed by reference to the boundaries of the territorial authorities within the district; and

(b)

alter whenever those boundaries are altered; and

(c)

must not include only a part of a territorial authority district.

Compare: 1956 No 65 s 19

Responsibility for public health in certain areas

15 Responsibility for public health in areas outside jurisdiction of local authorities

(1)

The improvement, promotion, and protection of public health in any outlying islands or other areas that are not, for the time being, within the jurisdiction of any local authority or port company is a function of the Ministry.

(2)

For the purposes of this section,—

(a)

the Ministry is deemed to be a local authority; and

(b)

the powers of the Ministry may be exercised by the Director-General or any employee or employees of the Ministry authorised by the Director-General; and

(c)

regulations may be made under section 374

(i)

to give effect to this section; and

(ii)

to prescribe reasonable fees payable by owners or occupiers of land within which the Ministry has jurisdiction under this section to enable expenditure by the Ministry in relation to that land to be recouped; and

(d)

all fees payable under those regulations may be recovered as a debt due to the Crown; and

(e)

all expenditure incurred by the Ministry in the exercise of its powers and functions under this section that is not recouped from fees must be paid out of money appropriated by Parliament.

Compare: 1956 No 65 s 8

Appointing or acting as medical officer of health

16 Director-General may act as or must appoint medical officer of health

(1)

If the Director-General is a medical practitioner suitably qualified and experienced in public health medicine, the Director-General—

(a)

has all the functions of a medical officer of health; and

(b)

may exercise those functions anywhere in New Zealand.

(1A)

If the Director-General has the qualifications and experience referred to in subsection (1), the Director-General may designate the Director of Public Health, or any other medical practitioner or practitioners employed in the Ministry who is or are suitably experienced and qualified in public health medicine, to exercise the functions of a medical officer of health anywhere in New Zealand.

(2)

If the Director-General does not have the qualifications and experience referred to in subsection (1), the Director- General must designate a the Director of Public Health, and any other medical practitioner or practitioners employed in the Ministry who is or are suitably experienced and qualified in public health medicine, to exercise the functions of a medical officer of health anywhere in New Zealand.

Compare: 1956 No 65 s 22

Subpart 4—Functions of Director of Public Health

Functions of Director of Public Health

17 Functions of Director of Public Health

(1)

There continues to be a Director of Public Health who is appointed by the Director-General under the State Sector Act 1988.

(1A)

The Director of Public Health must be a medical practitioner who is suitably experienced and qualified in public health medicine.

(2)

The Director of Public Health has the function of advising the Director-General on matters relating to public health, including—

(a)

personal health matters relating to public health: and

(b)

regulatory matters relating to public health.

(3)

Nothing in this section limits—

(a)

any other enactment or rule of law; or

(b)

the functions of the Ministry or of any other person or body.

Compare: 1956 No 65 s 3B

18 Director of Public Health may provide advice or reports to Minister

(1)

The Director of Public Health may at any time,—

(a)

advise the Minister on any matter relating to public health:

(b)

report to the Minister on any matter relating to public health.

(2)

In exercising his or her functions under this section, the Director of Public Health—

(a)

is not responsible to the Director-General; and

(b)

acts independently.

(3)

Nothing in this section limits—

(a)

the responsibility of the Director of Public Health to the Director-General for the efficient, effective, and economical management of his or her activities; or

(b)

section 11.

Compare: 1956 No 65 s 3D

Subpart 5—Public health functions of DHBs

19 Public health functions of DHBs

(1)

The public health functions of a DHB are to—

(a)

employ a sufficient number of those persons appointed by the Director-General as a medical officer of health or a health protection officer to implement and enforce this Act in the geographical area in respect of which the DHB is constituted; and

(b)

monitor and identify (whether through routine surveillance, investigations by health protection officers, data collection, or other means) risks to public health in the geographical area in respect of which the DHB is constituted; and

(c)

assess and, where appropriate, report to the Director-General on those risks; and

(d)

where appropriate, and reasonable in the circumstances, take steps to contain and manage those risks.

(2)

A DHB may, with the agreement of the Director-General, arrange for another DHB to carry out some or all of its functions under this Act or any regulations made under this Act.

(3)

Subsection (2) does not limit ways in which a DHB can carry out its functions under this section or the persons it may employ or engage in that task.

Subpart 6Reporting and advice functions of medical officers of health

19A Reporting functions of medical officers of health

(1)

A medical officer of health employed under section 19(1)(a) has the function of advising the Director of Public Health on matters relating to public health in the health district or districts for which they are responsible, including

(a)

personal matters relating to public health; and

(b)

regulatory matters relating to public health.

(2)

In exercising his or her functions under this section the medical officer of health

(a)

is not responsible to the DHB that employs him or her; and

(b)

acts independently.

19B Medical officer of health may provide advice or reports to DHB

A medical officer of health may at any time with the agreement of the Director of Public Health,

(a)

advise the board of the DHB that employs that medical officer of health on any matter relating to public health in the DHB’s district that in the opinion of the medical officer of health is urgent or significant:

(b)

report to the board of the DHB on any matter relating to public health in the DHB’s district that in the opinion of the medical officer of health is urgent or significant.

Subpart 7Duties of local authorities and environmental health officers

19C General powers and duties of territorial authorities in respect of public health

(1)

It is the duty of every territorial authority to improve, promote, and protect public health within its district so far as the powers and functions conferred on it by this Act enable it to do so, and for that purpose every territorial authority must

(a)

appoint, or arrange for another territorial authority to appoint, as many appropriately qualified environmental health officers and other officers and employees as in its opinion are necessary for the proper discharge of its duties under this Act:

(b)

cause inspections of its district to be regularly made for the purpose of ascertaining whether any nuisances exist in the district:

(c)

if satisfied that a nuisance exists in the district, take all proper steps to stop the nuisance:

(d)

if premises present a risk to public health, take any remedial action required to prevent that risk (such as cleansing or disinfecting the premises):

(e)

perform, within its district, any functions conferred on it by any regulations under this Act and to enforce those regulations within the district:

(f)

where appropriate, make public health bylaws.

(2)

Subsection (1) does not limit the Local Government Act 2002.

(3)

A territorial authority may delegate its powers and functions under this Act to any other territorial authority.

(4)

To avoid doubt, no delegation relieves the territorial authority of the liability or legal responsibility to perform, or ensure the performance of, any function or duty under this Act.

19CA Collaboration between local authorities and DHBs

A territorial authority, regional council, or DHB may at any time engage with another territorial authority, regional council, or DHB to develop non-binding district protocols to agree how responsibilities and roles within the district will be divided and how co-operation will occur.

19D Duty of territorial authority to have environmental health officers

(1)

For the purposes of this Part, every territorial authority must be able to access the services of a sufficient number of environmental health officers.

(2)

Every territorial authority is accountable to the Director-General for compliance with the duty imposed by subsection (1).

(3)

A territorial authority may comply with subsection (1), in whole or in part, by obtaining, under an arrangement with another territorial authority, the right to access the services of the environmental health officers of the other territorial authority.

(4)

The Director-General may, by direction in writing, require a territorial authority to appoint, or make arrangements for the appointment of, a minimum number of environmental health officers.

(5)

Before the Director-General issues a direction under subsection (4), the Director-General must consult with the territorial authority about the proposed direction.

(6)

If any territorial authority fails to appoint or to continue to employ the number of environmental health officers specified in any notice given under subsection (4), then

(a)

any health protection officer authorised by the Director-General may carry out the duties of an environmental health officer within the district of that territorial authority; and

(b)

the salary and other expenses of the health protection officer are payable by the territorial authority.

(7)

The salary payable under subsection (6)(b) for any period during which a health protection officer works as an environmental health officer on a part-time basis must be calculated and paid as a pro-rata proportion of the health protection officer’s full-time salary.

(8)

This section does not limit the power of the Director-General to give directions under section 8.

19E Provisions governing appointments

(1)

A territorial authority must not appoint a person as an environmental health officer unless satisfied

(a)

that the person is suitably qualified and experienced; and

(b)

if any regulations governing the appointment of environmental health officers are in force, that the appointment complies with those regulations.

(2)

The territorial authority may do any or all of the following:

(a)

appoint persons to enforce all or specified provisions of Part 5 that the territorial authority is responsible for enforcing:

(b)

appoint environmental health officers to exercise all or specified powers given to environmental health officers by Part 5:

(c)

appoint persons subject to limitations or restrictions on the exercise of their powers.

(3)

The territorial authority must provide every person appointed as an environmental health officer with a warrant or other instrument of appointment that specifies the powers the officer may exercise.

19F Functions of environmental health officers

An environmental health officer has the following functions within the district of the territorial authority concerned:

(a)

to take action under Part 5, under any bylaws, and under section 329 (which provides for the service of compliance orders) to

(i)

detect, prevent, stop, and prosecute nuisances; and

(ii)

assist any medical officer of health or health protection officer responsible within an area in the district, on request, to take such action:

(b)

to advise the relevant local authority on environmental health matters involved in the development of district and regional plans under the Resource Management Act 1991:

(c)

to advise the territorial authority on environmental health matters involved in plans and assessments developed under the Local Government Act 2002 and, in particular, on the water and sanitary services assessments prepared under that Act:

(d)

to provide general advice to the territorial authority on those of its activities that relate to public health.

Part 2 Health information, notification, reporting, and cervical screening

Subpart 1—Health information

20 Interpretation

In this subpart, unless the context otherwise requires,—

agency has the same meaning as in section 2 of the Privacy Act 1993

disability support services has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

health information, in relation to an identifiable individual, means—

(a)

information about the health of that individual, including that individual’s medical history:

(b)

information about any disabilities that the individual has, or has had:

(c)

information about any health services or disability support services that are being provided, or have been provided, to that individual:

(d)

information provided by that individual in connection with the donation, by that individual, of any body part, or any bodily substance of the individual, or derived from the testing or examination of any body part or any bodily substance of that individual:

(e)

information about the individual that is collected before or in the course of, and incidental to, the provision of any health service or disability support service to that individual:

(f)

for the purpose of section 23 and for that purpose only, information relating to any body part or bodily substance donated by an individual and relevant (whether directly or indirectly) to the donation

representative, in relation to any individual, means,—

(a)

where the individual is dead, that individual’s personal representative:

(b)

where the individual is under the age of 16 years, that individual’s parent or guardian:

(c)

subject to paragraphs (a) and (b), where the individual is unable to give his or her consent or authority or to otherwise exercise his or her rights under this Part, a person appearing to be lawfully acting on the individual’s behalf or in that individual’s interests.

Compare: 1956 No 65 s 22B

21 Disclosure of health information

(1)

Any person (being an agency that provides services or arranges the provision of services) may disclose health information—

(a)

if that information—

(i)

is required by any person specified in subsection (2); and

(ii)

is required (or, in the case of the purpose set out in paragraph (j) of that subsection, is essential) for the purpose set out in that subsection in relation to the person so specified; or

(b)

if that disclosure is permitted—

(i)

by or under a code of practice issued under section 46 of the Privacy Act 1993; or

(ii)

if no such code of practice applies in relation to the information, by any of the information privacy principles set out in section 6 of that Act.

(2)

The persons and purposes referred to in subsection (1)(a) are as follows:

(a)

a medical officer of a prison within the meaning of the Corrections Act 2004, for the purposes of exercising or performing any of that person’s powers, duties, or functions under that Act:

(b)

a probation officer within the meaning of the Corrections Act 2004, for the purposes of exercising or performing any of that person’s powers, duties, or functions under any enactment:

(c)

a social worker or a care and protection co-ordinator within the meaning of section 2(1) of the Children, Young Persons, and Their Families Act 1989, for the purposes of exercising or performing any of that person’s powers, duties, or functions under that Act:

(d)

an employee of the department for the time being responsible for the administration of the Social Security Act 1964, for the purposes of administering section 75 of that Act:

(e)

a member of the New Zealand Defence Force, for the purposes of administering the Armed Forces Discipline Act 1971 or the Defence Act 1990:

(f)

a member of the Police, for the purposes of exercising or performing any of that person’s powers, duties, or functions:

(g)

an employee of the Ministry of Health, for the purposes of—

(i)

exercising any power or performing any function or duty under this Act; or

(ii)

compiling statistics for health purposes:

(ga)

an officer appointed under section 60 of the Agricultural Compounds and Veterinary Medicines Act 1997 for the purpose of exercising or performing any of that person’s powers, duties, or functions under that Act:

(gb)

an officer appointed under section 78 of the Animal Products Act 1999 for the purpose of exercising or performing any of that person’s powers, duties, or functions under that Act:

(gc)

an officer appointed under section 7 of the Food Act 1981 for the purpose of exercising or performing any of that person’s powers, duties, or functions under that Act:

(gd)

an officer appointed under section 55 of the Wine Act 2003 for the purpose of exercising or performing any of that person’s powers, duties, or functions under that Act:

(h)

an employee of the New Zealand Food Safety Authority authorised by the chief executive of that Authority to receive the information, for the purposes of performing any function under the Animal Products Act 1999: statistical or research purposes relating to the functions of the New Zealand Food Safety Authority:

(i)

an employee of Land Transport New Zealand, for statistical or research purposes in relation to road safety or the environment:

(j)

an employee of a DHB, for the purposes of exercising or performing any of that DHB’s powers, duties, or functions under the New Zealand Public Health and Disability Act 2000 or section 19 of this Act:

(k)

an employee of the Accident Compensation Corporation, for the purposes of exercising or performing any functions under section 279 of the Injury Prevention, Rehabilitation, and Compensation Act 2001:

(l)

an employee of the Department of Labour authorised by the Chief Executive of that Department to receive information for the purposes of performing any function under the Health and Safety in Employment Act 1992.

(3)

For the purposes of information privacy principle 11(d) of the Privacy Act 1993, the disclosure of health information about an individual may be authorised—

(a)

by the individual personally, if he or she has attained the age of 16 years; or

(ab)

by the individual personally if he or she is less than 16 years of age and, in the opinion of the person seeking the authority or to whom the authority is being communicated, the individual has the capacity to

(i)

understand the nature, and foresee the consequences, of giving the authority; and

(ii)

communicate that authority; or

(b)

by a representative of that individual.

(4)

The chief executive of the Department of Labour may provide any information received under subsection (2)(l) to any agency designated under section 28B of the Health and Safety and Employment Act 1992, but only for the purpose of supporting the agency’s functions under that Act.

Compare: 1956 No 65 s 22C

22 Duty to provide health information

(1)

The Minister may at any time, by notice in writing, require any provider or funder of services to provide, in such manner as may from time to time be required, such returns or other information as is specified in the notice concerning the condition or treatment of, or the services provided to, any individuals in order to obtain statistics for health information purposes or for the purposes of advancing health knowledge, health education, or health research.

(2)

Subject to subsection (3), it is the duty of a provider or funder of services to provide the returns or other information specified in a notice given to it under subsection (1) within the time, and in the form, specified in the notice.

(3)

No information that would enable the identification of an individual may be provided under this section unless—

(a)

the individual consents to the provision of such information; or

(b)

the identifying information is essential for the purposes for which the information is sought.

(4)

For the purposes of subsection (3)(a), consent to the provision of information may be given—

(a)

by the individual personally, if he or she has attained the age of 16 years; or

(ab)

by the individual personally if he or she is less than 16 years of age and, in the opinion of the person seeking the authority or to whom the authority is being communicated, the individual has the capacity to

(i)

understand the nature, and foresee the consequences, of giving the authority; and

(ii)

communicate that authority; or

(b)

by a representative of that individual.

(5)

For the purpose of this section, funder means any person (other than a natural person) or organisation that funds the provision of services, whether that person or organisation is a public funder or not.

Compare: 1956 No 65 s 22D

23 Duty to provide information for purposes of blood collection

The Minister may, at any time, by notice in writing, require a DHB to provide to an entity appointed under section 92H of Health Act 1956, 63 of the Human Tissue Act 2008 in the manner that the Minister specifies in the notice, the health information that the Minister specifies.

Compare: 1956 No 65 s 22E

24 Communication of information for diagnostic and other purposes

(1)

Every person who holds health information of any kind must, at the request of the individual about whom the information is held, or a representative of that individual, or any other person that is providing, or is to provide, services to that individual, disclose that information to that individual or, as the case requires, to that representative or to that other person.

(2)

A person that holds health information may refuse to disclose that information under this section if—

(a)

that person has a lawful excuse for not disclosing that information; or

(b)

where the information is requested by someone other than the individual about whom it is held, the holder of the information has reasonable grounds for believing that that individual does not or would not wish the information to be disclosed; or

(c)

where the information is requested by a representative of the individual about whom it is held—

(i)

disclosure would be contrary to the individual’s interests; or

(ii)

there would be good grounds for withholding the information under Part 4 of the Privacy Act 1993 if the request had been made by the individual.

(3)

For the purposes of subsection (2)(a), none of the following constitute a lawful excuse for not disclosing information under this section:

(a)

the fact that any payment due to the holder of any information or to any other person has not been made:

(b)

the need to avoid prejudice to the commercial position of the holder of any information or of any other person:

(c)

the fact that disclosure is not permitted under any of the information privacy principles set out in section 6 of the Privacy Act 1993.

(4)

Where any person refuses to disclose health information in response to a request made under this section, the person whose request is refused may make a complaint to the Privacy Commissioner under Part 8 of the Privacy Act 1993, and that Part of that Act, so far as applicable and with all necessary modifications, applies in relation to that complaint as if the refusal to which the complaint relates were a refusal to make information available in response to an information privacy request within the meaning of that Act.

(5)

Nothing in subsection (4) limits any other remedy that is available to any person who is aggrieved by any refusal to disclose information under this section.

Compare: 1956 No 65 s 22F

25 Anonymous health information

Despite any enactment, rule of law, or other obligation, any person may supply to any other person health information that does not enable the identification of the individual to whom the information relates.

Compare: 1956 No 65 s 22H

26 Regulations as to retention of health information

(1)

The Governor-General may, by Order in Council made on the advice of the Minister given after consultation with persons, or representatives of persons (including, without limitation, health consumers), or bodies likely to be affected, make regulations providing for all or any of the following matters:

(a)

the minimum periods for which health information or specimens, or any class or classes of health information or specimens, must be retained by any person or class or classes of person specified in the regulations:

(b)

the safeguards to be taken by any holder, or any class or classes of holder, of health information or specimens, to ensure that health information or specimens, or any class or classes of health information or specimens, is protected against all or any of the following:

(i)

loss, damage, or destruction:

(ii)

access, use, modification, or disclosure, except where properly authorised:

(iii)

other misuse:

(c)

the procedures (including procedures requiring notification to the public, or any section of the public, or to any particular persons) to be followed by any holder, or any class or classes of holder, of health information or specimens, or any class or classes of health information or specimens, before that information or those specimens may be destroyed.

(2)

In this section, specimen means a bodily sample or tissue sample taken from a person

Compare: 1956 No 65 s 121A

Subpart 2—Inspection of records to verify compliance with subsidy authorisations, etc

27 Interpretation

In this subpart, unless the context otherwise requires,—

historical public funder means—

(a)

the Health Funding Authority or a person authorised by the Health Funding Authority to make payments:

(b)

a regional health authority or a person authorised by a regional health authority to make payments:

(c)

Health Benefits Limited:

(d)

a hospital and health service:

(e)

a Crown health enterprise:

(f)

an area health board:

(g)

a hospital board:

(h)

the Department of Health

Pharmac has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

pharmaceutical schedule has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

provider has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

public funder means—

(a)

the Ministry of Health:

(b)

a DHB:

(c)

any person (whether an individual or a body corporate), while helping an organisation referred to in paragraph (a) or (b) to carry out its function as a public funder

subsidy authorisation means the authorisation by a provider of the provision of services by another provider where that other provider may then make a subsidy claim for those services

subsidy claim means a claim by a provider to a public funder or historical public funder for a payment for services provided to a person

verifying compliance with the requirements of the pharmaceutical schedule includes assessing whether a provider has complied, or is complying, with any matter of eligibility or criteria for the provision of subsidies contained in the pharmaceutical schedule in making a subsidy authorisation or subsidy claim.

28 Inspection of records to verify compliance with subsidy authorisation or subsidy claim

(1)

For the purpose of verifying a subsidy claim or subsidy authorisation, the Director-General or the chief executive of a DHB may require a provider to make available for inspection any records of the provider that relate to the subsidy authorisation or subsidy claim.

(2)

Without limiting subsection (1), a requirement under that subsection may include a requirement for a provider to make records available if—

(a)

that provider has provided services to a person in respect of whom a subsidy claim has been made (whether by that provider or another person); or

(b)

that provider has made a subsidy authorisation for a person that relates to services provided as part of an episode of care for the person resulting in a subsidy claim (for example, if a medical practitioner prescribes a medicine and there is a subsidy claim by a pharmacist in respect of the medicine, or if a medical practitioner refers the person to another medical practitioner resulting in a subsidy claim by that other medical practitioner).

(3)

If the Director-General or the chief executive of a DHB requires a provider to make records available under subsection (1), the Director-General or chief executive of the DHB must authorise, in writing, 1 or more of the following individuals to undertake the inspection:

(a)

a person who holds a relevant professional qualification:

(b)

any other person the Director-General or chief executive of the DHB considers appropriate.

(4)

Each of the 1 or more individuals undertaking an inspection must show their authority to the provider when undertaking the inspection.

(5)

Any person authorised under subsection (3) may copy or take notes of those records for the purposes of the inspection.

29 Inspection of provider records to verify compliance with the pharmaceutical schedule

(1)

For the purpose of verifying compliance with the requirements of the pharmaceutical schedule, the Director-General or the chief executive of a DHB or the chief executive of Pharmac may require a provider to make available for inspection any records of the provider.

(2)

If the Director-General or the chief executive of a DHB or the chief executive of Pharmac requires a provider to make records available under subsection (1), he or she must authorise, in writing, 1 or more of the following individuals to undertake the inspection:

(a)

a person who holds a relevant professional qualification:

(b)

any other person the Director-General or the chief executive of the DHB or the chief executive of Pharmac considers appropriate.

(3)

Each of the 1 or more individuals undertaking an inspection must show their authority to the provider when undertaking the inspection.

(4)

Any person authorised under subsection (2) may copy or take notes of those records for the purposes of the inspection.

30 Contravention of section 28 or 29 an offence

Any provider who fails to comply with a requirement made under section 28 or 29 commits an offence and is liable on summary conviction to a fine not exceeding $10,000.

Subpart 3—Notification and reporting

31 Duty to report matters that constitute public health risk

(1)

A medical practitioner or specified person (the reporting person) must report to a medical officer of health—

(a)

if the reporting person has reasonable grounds to suspect that a case of a condition, or a cluster or outbreak has occurred; and

(b)

the reporting person considers that it is likely that the case of the condition, or the cluster or outbreak, is a risk to public health.

(2)

The information that must be reported is—

(a)

the nature of the condition; and

(b)

the time, date, and location (if known) of the case or cluster or outbreak; and

(c)

the nature and extent (whether geographical or otherwise) of the risk to public health that the reporting person considers exists; and

(d)

any other information required by regulations made under section 43.

(3)

If the medical officer of health considers that the information provided under subsection (2) is insufficient for the purposes of this subpart, he or she may require the reporting person to provide the following information, if known by the reporting person, about the person or persons who have, or may have, the condition:

(a)

name and address:

(b)

national health index number.

32 Medical practitioner or specified person must notify notifiable condition

(1)

This section applies if a medical practitioner or specified person has attended to a person or otherwise provided care for a person (including attending to the body of a person who is deceased).

(2)

The medical practitioner or specified person (the notifying person) must notify the appropriate authority—

(a)

if—

(i)

the notifying person has reasonable grounds to believe that the person has a condition or in the case of a deceased person, had a notifiable condition; or

(ii)

Schedule 1 provides that the disease or other condition is one that must be notified on reasonable suspicion, and the notifying person has reasonable grounds to suspect that the person may have a notifiable condition or in the case of a deceased person, may have had a notifiable condition; and

(b)

Schedule 1 specifies that the disease or other condition is one that the notifying person is required to notify.

(3)

The information that must be notified is—

(a)

the notifiable condition concerned, and whether it is suspected (if applicable) or confirmed; and

(b)

if Schedule 1 provides that the condition is one where identifying details are required to be notified, and if known by the notifying person, the name, address, and national health index number of the person who has or may have (or had or may have had) the condition; and

(b)

the identifying details (if any) specified in Schedule 1 in relation to the person who has or may have (or had or may have had) the condition, if known by the notifying person; and

(c)

any other information required by regulations made under section 43.

(4)

The notification must be made as soon as practicable or within any period of time that may be specified in Schedule 1 regulations made under section 43 in relation to a particular condition.

(5)

If a condition is one where identifying details are not to be notified but the appropriate authority considers in a particular case that the information provided in the notification is insufficient for the purposes of this subpart, the appropriate authority may require the notifying person to provide the information described in subsection (3)(b), if known by the notifying person.

(5)

If a condition is one where no identifying details or less than full identifying details are required to be notified but the appropriate authority considers in a particular case that the information provided in the notification is insufficient to enable a public health response, the appropriate authority may require the notifying person to provide the following in relation to the person who has (or had or may have had) the condition, if known by the notifying person:

(a)

name and address:

(b)

national health index number.

Compare: 1956 No 65 s 74

33 Laboratory must notify notifiable condition

(1)

A person in charge of a laboratory must notify the appropriate authority if—

(a)

the person in charge has reasonable grounds to believe that the results from any test of any specimen indicate that the person from whom the specimen was taken—

(i)

has a notifiable condition; or

(ii)

in the case of a deceased person, had a notifiable condition; and

(b)

Schedule 1 specifies that the notifiable disease or other notifiable condition is one that the person in charge is required to notify.

(2)

The information that must be notified is—

(a)

the notifiable condition concerned, and whether it is suspected (if applicable) or confirmed; and

(b)

if Schedule 1 provides that the condition is one where identifying details are required to be notified, and if known by the person in charge, the name, address, and national health index number of the person who has or had the condition; and

(b)

the identifying details (if any) specified in Schedule 1 in relation to the person who has or may have (or had or may have had) the condition, if known by the notifying person; and

(c)

any other information required by regulations made under section 43.

(3)

The notification must be made as soon as practicable or within any period of time that may be specified in Schedule 1 regulations made under section 43 in relation to a particular condition.

(4)

If a condition is one where identifying details are not to be notified but the appropriate authority considers in a particular case that the information provided in the notification is insufficient for the purposes of this subpart, the appropriate authority may require the notifying person to provide the information described in subsection (2)(b), if known by the reporting person.

(4)

If a condition is one where no identifying details or less than full identifying details are required to be notified but the appropriate authority considers in a particular case that the information provided in the notification is insufficient to enable a public health response, the appropriate authority may require the notifying person to provide the following in relation to the person who has (or had or may have had) the condition, if known by the notifying person:

(a)

name and address:

(b)

national health index number.

34 Laboratory must notify notifiable contaminants

(1)

The person in charge of a laboratory must notify the appropriate authority if the person in charge has reasonable grounds to believe that the results from any test of a sample indicate the presence of a notifiable contaminant in that sample.

(2)

The information that must be notified is—

(a)

the notifiable contaminant concerned; and

(b)

the nature of the sample; and

(c)

the location from which the sample was taken or (if that location is not known) the name of the person who, or organisation that, collected the sample; and

(d)

the level of contaminant found in the sample.

(3)

The notification must be made as soon as practicable or within any period of time that may be specified in Schedule 2 regulations made under section 43 in relation to a particular contaminant.

35 Person who obtains result of test of sample overseas must notify contaminant

(1)

This section applies if—

(a)

a person has obtained the results of a test of a sample performed in a laboratory outside New Zealand on a sample taken in New Zealand; and

(b)

the person has reasonable grounds to believe that the results of the test indicate the presence of a notifiable contaminant in the sample.

(2)

The person must notify the appropriate authority.

(3)

The information that must be notified is—

(a)

the notifiable contaminant; and

(b)

the nature of the sample; and

(c)

the location from which the sample was taken or (if that location is not known) the name of the person who, or organisation that, collected the sample; and

(d)

the level of contaminant found in the sample.

(4)

The notification must be made as soon as practicable or within any period of time that may be specified in Schedule 2 regulations made under section 43 in relation to a particular contaminant.

36 Notifiable conditions in animals

(1)

Regulations made under section 43 may specify the notifiable conditions to which this section applies.

(2)

A veterinary surgeon must notify the appropriate authority if the veterinary surgeon has reasonable grounds to believe that an animal professionally attended by that veterinary surgeon has a notifiable condition to which this section applies.

(3)

A person in charge of a laboratory must notify the appropriate authority if the person in charge has reasonable grounds to consider, as a result of investigations made in that laboratory, that an animal has, or has had, a notifiable condition to which this section applies.

(4)

The person in charge of a laboratory is not required to make the notification in subsection (3) if that person is satisfied that notice has been given under subsection (2) in respect of that animal.

(5)

The information that must be notified under subsection (2) or (3) is—

(a)

the notifiable condition concerned; and

(b)

any other information required by regulations made under section 43.

(6)

The notification must be made as soon as practicable or within any period of time that may be specified in regulations made under section 43.

(7)

Nothing in this section applies in respect of any animal found to be suffering from a notifiable condition in the course of any campaign for the eradication of that condition conducted by or at the instance of the Ministry of Agriculture and Forestry.

Compare: 1956 No 65 s 87A

37 Power of Governor-General to amend schedules

(1)

The Governor-General may by Order in Council, on the recommendation of the Minister,—

(a)

amend Part 1 of Schedule 1 to—

(i)

add to, omit from, or otherwise amend any item in the list of notifiable conditions:

(ii)

add any item to or omit any item from the list of notifiable conditions:

(b)

amend Part 2 of Schedule 1 by adding or omitting the name of a disease or substituting a new name for a disease:

(c)

amend Schedule 2 to—

(i)

add to, omit from, or otherwise amend any item in the list of notifiable contaminants:

(ii)

add any item to or omit any item from the list of notifiable contaminants.

(2)

For the purposes of subsection (1),—

(a)

an item, in relation to a particular condition in Part 1 of Schedule 1, means the name of the condition set out in column 1 of that schedule and any other matters set out in relation to that condition in the second, third, fourth, and fifth columns of that schedule; and

(b)

an item, in relation to a particular contaminant in Schedule 2, means the name of the contaminant set out in column 1 of that schedule and any matter set out in the second column of that schedule.

(3)

Before recommending an amendment under subsection (1)(a), the Minister must take the following factors into account:

(a)

the level and nature of the risk to an affected person posed by a condition, or to others who may contract the condition from the person, taking into account the seriousness of the condition and the ease with which others may be infected its mode of transmission:

(b)

the extent to which making a condition notifiable would inform or enable effective action for its prevention or management:

(c)

whether a condition is listed included on the National Immunisation Schedule or its inclusion is planned for:

(d)

whether a condition may develop into a more serious condition if not controlled and the potential for achieving that control:

(e)

whether a condition indicates—

(i)

environmental factors that may contribute to existence of the condition:

(ii)

a concern that, of itself or taken together with similar notifications may require a response to minimise risk to public health:

(iii)

whether the disease or other condition indicates may indicate an act of terrorism:

(f)

whether making a condition notifiable is necessary or desirable in order to comply with any international obligation that New Zealand may have in relation to health:

(g)

whether identifying details of a person who has or may have (or had or may have had) a condition should be required as part of a notification of that condition.

(4)

Before recommending an amendment under subsection (1)(b), the Minister must be satisfied that the effects of an outbreak of the disease might disrupt or continue to disrupt essential governmental and business activity in New Zealand (or parts of New Zealand) significantly.

(5)

Before recommending an amendment under subsection (1)(c), the Minister must be satisfied that the presence of the contaminant is indicative of, or likely to lead to the development of,—

(a)

a notifiable condition in a person; or

(b)

any other significant risk to public health.

(5A)

Before recommending an amendment under subsection (1) the Minister must consult with any representative groups or other bodies or persons within the health sector that the Minister considers appropriate.

(5B)

Subsection (5A) does not apply if the Minister considers in a particular case that the making of an order under subsection (1) is a matter of urgency in the public interest.

(6)

Schedule 2 may incorporate by reference all or any of the following:

(a)

items that are notifiable contaminants:

(b)

descriptions of those items:

(c)

descriptions of how the levels of a contaminant are calculated.

(7)

Subsection (6) is subject to sections 337 to 344 (the standard provisions about incorporation by reference).

38 Temporary specification of notifiable condition or epidemic disease

(1)

The Director-General Minister may, on the grounds specified in subsection (2), by notification in the Gazette, amend Part 1 of Schedule 1 to add any item to the list of notifiable conditions declare that the provisions of this Act apply as if a particular condition specified in the notice were a notifiable condition.

(2)

The Director-General Minister may exercise the power in subsection (1) if he or she considers that it is reasonably necessary on any grounds, including, without limitation,—

(a)

that there is an urgent need to specify a treat the condition as if it were a notifiable condition; or

(b)

that the public health significance of the condition is still being determined.

(3)

The Director-General may, by notification in the Gazette, amend Part 2 of Schedule 1 to add the name of a disease.

(4)

An amendment to Schedule 1 made under subsection (1) or (3) A notice under this section takes effect on the day after the date that it is notified in the Gazette and expires 6 3 months after that date unless earlier revoked by an Order in Council made under section 37.

39 Duty of confidentiality and authorised disclosure of identifying particulars obtained from report or notification

(1)

This section applies to—

(a)

any person who, as part of reporting or notifying information under this Part, reports or notifies any identifying particulars of any person to whom the report or notification relates (the identifying particulars); and

(b)

an appropriate authority that receives any information containing the identifying particulars.

(2)

A person described in subsection (1) may disclose the identifying particulars to another person only if—

(a)

authorised by this Act; or

(b)

disclosure is reasonably required in a particular circumstance to enable—

(i)

the treatment of the person whose identifying particulars they are; or

(ii)

action to be taken to protect public health.

(3)

If subsection (2) authorises identifying particulars to be disclosed to any person other than a provider or funder, that information may only be disclosed with the prior written approval of a medical officer of health.

(3)

If subsection (2)(b) authorises identifying particulars to be disclosed to any person other than a provider or funder, that information may be disclosed only

(a)

with the prior written approval of a medical officer of health; or

(b)

with the prior written authority of the person whose identifying particulars they are.

(4)

Subsection (3) does not apply if the person proposing to disclose information under subsection (2) is a medical officer of health.

(5)

For the purpose of this section, funder means any person (other than a natural person) or organisation that funds the provision of services, whether that person or organisation is a public funder or not.

40 Medical officer of health may authorise disclosure of notification information

A medical officer of health may authorise the disclosure of information obtained from reports or notifications given under this Part if the information is disclosed in a form that could not reasonably be expected to identify any individual in relation to whom a report or notification was given.

41 Duty to provide information regarding obligations to report and notify

(1)

Every medical practitioner and specified person must ensure that there is available to any person about whom information may be reported or notified under this Part written information that—

(a)

explains the medical practitioner’s or specified person’s duty to report and notify under this Part; and

(b)

states who may have access to the information and what the information is used for.

(2)

Every manager of a laboratory must ensure that there is available to any person about whom information may be notified under this Part written information that explains the manager’s duty to notify under this Part.

(3)

The information in subsection (1) or (2) need not be provided individually to each person concerned but may be conveyed by use of a general notice in a waiting room or other means appropriate in the circumstances.

(4)

If a person about whom information may be reported or notified under this subpart is deceased, nothing in this section requires any person to provide the information in subsection (1) or (2) to any member of the family of the deceased person, or to any other person.

42 Offence to fail to report or notify as required

(1)

A medical practitioner, specified person, or person in charge of a laboratory who fails to comply with the requirements of this subpart commits an offence and is liable on summary conviction to a fine not exceeding $1,000.

(1A)

A person to whom section 35 applies who fails to comply with that section commits an offence and is liable on summary conviction to a fine not exceeding $10,000.

(2)

A veterinary surgeon or person in charge of a laboratory who fails to comply with the requirements of section 36 commits an offence and is punishable on summary conviction to a fine not exceeding $1,000.

43 Regulations

(1)

The Governor-General may, by Order in Council, make regulations—

(a)

prescribing any person or organisation (which may, without limitation, be the Director-General of Health) as an appropriate authority for the purpose of this subpart:

(b)

prescribing all or any of the following as specified persons:

(i)

any class of health practitioner (other than medical practitioners):

(ii)

health protection officers or medical officers of health:

(iii)

the managers, owners, and occupiers of facilities (whether residential or otherwise) that provide services or any class of those facilities:

(iv)

coroners or any class of coroners:

(c)

prescribing information required to be reported or notified under section 31(2)(d), 32(3)(c), or 33(2)(c) 33(2)(c), or 36(5).

(2)

No regulation made under subsection (1)(c) may require, for the purpose of section 31(2)(d), the reporting of details identifying an individual.

Subpart 4—National Cervical Screening Programme

44 Purpose

The purpose of this subpart is—

(a)

to reduce the incidence and mortality rate of cervical cancer by providing for the continuation of the NCSP; and

(b)

to facilitate the operation and evaluation of that national cervical screening programme by—

(i)

enabling access to information and specimens by the persons operating the programme; and

(ii)

enabling access to information and specimens by screening programme evaluators appointed to evaluate that programme.

Compare: 1956 No 65 s 112A

45 Interpretation

In this subpart, unless the context otherwise requires,—

cancer has the meaning set out in section 2 of the Cancer Registry Act 1993

cancer registry means the cancer registry maintained under the Cancer Registry Act 1993

cervical cancer means any cancer of the cervix

diagnostic test means a test taken to determine or confirm the presence of cancer, or a precursor to cancer, in a woman’s cervix, and may include—

(a)

a colposcopic procedure:

(b)

an examination of a histological specimen taken from the woman

evaluate has the meaning set out in section 63(1)

evaluation material means any information about, and any specimen taken from, an identifiable individual that was obtained by a screening programme evaluator under this subpart

health information has the meaning set out in paragraphs (a) and (c) of the definition of that term in section 20

health practitioner has the meaning set out in section 5 of the Health Practitioners Competence Assurance Act 2003

hospital means a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001

NCSP means the programme that, at the date of commencement of this section, is operated by the Ministry of Health and known as the National Cervical Screening Programme

NCSP manager means—

(a)

the person appointed under section 46(3) as the NCSP manager; or

(b)

if no person has been appointed as the NCSP manager, the Director-General

NCSP register means the National Cervical Screening Programme register maintained by the persons appointed under section 46

relevant woman, for the purposes of sections 67, 71, 72, and 73, has the meaning set out in section 67(1)

review committee means an NCSP review committee established under section 58(1)

screening programme evaluator means a person designated as a screening programme evaluator under section 64(1)

screening test means a routine test, such as a cervical smear test, designed to identify women who may have cervical cancer or a precursor to cervical cancer

specimen means a bodily sample or tissue sample taken from a woman for the purpose of a screening test or a diagnostic test, and includes cervical cytology and histology slides and blocks.

Compare: 1956 No 65 s 112B

Operation of NCSP

46 Appointment of persons to operate NCSP

(1)

All persons appointed to operate the NCSP, and to perform functions in relation to the operation of that programme, must be appointed under section 59 of the State Sector Act 1988, unless it is not reasonably practicable to do so.

(2)

If the Director-General wishes to appoint a particular person to perform particular functions in relation to the operation of the NCSP, and it is not reasonably practicable to appoint that person under section 59 of the State Sector Act 1988, the Director-General may appoint that person to perform those functions under this subsection.

(3)

The Director-General may appoint, either under section 59 of the State Sector Act 1988 or under subsection (2), 1 person to be the manager of the NCSP.

(4)

The NCSP manager may direct a person appointed under section 59 of the State Sector Act 1988 or under subsection (2) in relation to the performance of that person’s functions, and that person must comply with the NCSP manager’s direction.

(5)

The Director-General may direct the NCSP manager in relation to the performance of the NCSP manager’s functions, and the NCSP manager must comply with the Director-General’s direction.

Compare: 1956 No 65 s 112C

47 Objectives of NCSP

The objectives of the NCSP are to—

(a)

promote high quality cervical screening, assessment, and treatment services, while recognising and managing the differences between the various types of cervical cancer, with a view to reducing the incidence and mortality rate of cervical cancer; and

(b)

inform women and the community of the risks, benefits, and expected population health gains from participation in the NCSP; and

(c)

promote the regular recall of women who are enrolled in the NCSP for screening tests; and

(d)

facilitate continuous quality improvement by allowing and performing regular evaluations of the NCSP; and

(e)

ensure that information that is collected for the purposes of the NCSP is—

(i)

available, in a reliable, accurate, and timely manner, to persons authorised under this subpart, or any other enactment, to have access to it; and

(ii)

safely stored, including on the NCSP register; and

(f)

provide information to women about the quality and effectiveness of the NCSP including, if it is appropriate, information based on the results of evaluations.

Compare: 1956 No 65 s 112D

48 Enrolment in NCSP

(1)

The NCSP manager must enrol in the NCSP every woman who—

(a)

has a screening test, the result of which is reported to the NCSP; or

(b)

undergoes a colposcopic procedure, the result of which is reported to the NCSP.

(2)

The NCSP manager may, at his or her discretion, enrol in the NCSP a woman who undergoes a surgical procedure during which a histological specimen is taken that includes a cervical component if the results of an analysis of that specimen are reported to the NCSP.

(3)

Subsections (1) and (2) do not apply if the woman to whom the results relate—

(a)

is already enrolled in the NCSP; or

(b)

has cancelled her enrolment in the NCSP; or

(c)

has notified the NCSP manager, under section 50(2), that she does not wish to be enrolled in the NCSP.

Compare: 1956 No 65 s 112E

49 Duties of NCSP manager that relate to enrolled women

(1)

As soon as practicable after enrolling a woman in the NCSP, the NCSP manager must—

(a)

notify the woman that she has been enrolled in the NCSP; and

(b)

provide information to the woman about—

(i)

the importance of having regular screening tests; and

(ii)

the risks and benefits of participation in the NCSP; and

(iii)

who has access to information on the NCSP register, and the uses to which that information may be put; and

(iv)

the objectives of the NCSP, including that of continuous quality improvement through evaluation; and

(v)

the possible use by screening programme evaluators of evaluation material relevant to the woman for the purpose of evaluations of the NCSP; and

(c)

advise the woman that she may cancel her enrolment by advising the NCSP manager under section 50(1).

(2)

The NCSP manager must record on the NCSP register every result that is reported to the NCSP manager from a screening test, or from a diagnostic test, if that result relates to a woman who is enrolled in the NCSP.

Compare: 1956 No 65 s 112F

50 Procedure to prevent or cancel enrolment in NCSP

(1)

A woman who is enrolled in the NCSP may, at any time, cancel that enrolment by advising the NCSP manager in the manner and form specified by the NCSP manager.

(2)

A woman who is not enrolled in the NCSP, and who does not wish to be enrolled, may, at any time, notify the NCSP that she does not wish to be enrolled.

(3)

A notification under subsection (2) must—

(a)

be in the manner and form specified by the NCSP manager; and

(b)

include information that will enable the NCSP manager, in the future, to identify the woman as a woman who must not be enrolled in the NCSP (which information may be kept on the NCSP register and used by the NCSP manager for that purpose).

Compare: 1956 No 65 s 112G

51 Duties of NCSP manager when women cancel enrolment in NCSP

(1)

If a woman cancels her enrolment in the NCSP under section 50(1), or notifies the NCSP manager that she does not wish to be enrolled under section 50(2), the NCSP manager must—

(a)

send a notice to the woman confirming that her enrolment in the NCSP has been cancelled or, as the case requires, that she will not be enrolled; and

(b)

delete any information that relates to that woman from the current NCSP register; and

(b)

send to the woman, and to her nominated health professional if she so authorises, in hard copy format a copy of the information that relates to that woman from the current NCSP register and then delete that information from the register; and

(c)

dispose of any information that is held by the NCSP manager in hard copy format and that relates to that woman by either—

(i)

returning it to her; or

(ii)

destroying it (if she requests that it be destroyed); and

(d)

while that woman is not enrolled in the NCSP,—

(i)

ensure that no information that is provided to the NCSP and that relates to that woman is included on the NCSP register; and

(ii)

return or destroy any information that is provided to the NCSP and that relates to that woman.

(2)

Subsection (1) does not apply to information that the NCSP manager determines it is necessary to keep for the purpose of identifying the woman as a woman whose results must not be entered on the NCSP register, such as, for example, her name, address, date of birth, and national health index number, but the information that is retained must be no more than is required for that purpose.

(3)

Despite subsection (1)(c), the NCSP manager may retain information that relates to a woman who cancels her enrolment in the NCSP if that information—

(a)

is in hard copy format; and

(b)

was received before the date of commencement of this section.

(4)

To avoid any doubt, subsection (1) overrides the Health (Retention of Health Information) Regulations 1996.

Compare: 1956 No 65 s 112H

52 Procedure to re-enrol in NCSP

(1)

A woman who has cancelled her enrolment in the NCSP may re-enrol at any time by advising the NCSP manager in the manner and form specified by the NCSP manager.

(2)

A woman who has notified the NCSP manager, under section 50(2), that she does not wish to be enrolled in the NCSP may cancel that notification and enrol in the NCSP, at any time, by advising the NCSP manager in the manner and form specified by the NCSP manager.

Compare: 1956 No 65 s 112I

53 Certain information held by NCSP must not be disclosed

(1)

No person may disclose information from the NCSP register, or information that is held by the NCSP as a result of an evaluation, if that information identifies a woman unless that information is disclosed—

(a)

with the consent of the woman or her personal representative; or

(b)

to a screening programme evaluator under section 67(2)(a); or

(c)

to a review committee, in accordance with a request from that committee under section 60(1); or

(d)

to a health practitioner who has been engaged by, or on behalf of, the woman, and the information is disclosed for the purpose of assisting that health practitioner to provide health services to that woman; or

(e)

for the purpose of enabling results from a screening test or a diagnostic test to be followed up; or

(f)

for the purpose of enabling notices related to the NCSP to be sent to women who are enrolled in the NCSP, including reminder notices to women who are due for another screening test; or

(g)

for the purpose of giving access to the NCSP register, in accordance with regulations made under section 75(1)(a), to persons researching cancer; or

(h)

subject to any regulations made under section 75(1)(b), for the purpose of enabling the compilation and publication of statistics that do not enable the identification of the women to whom those statistics relate.

(2)

Despite subsection (1), a screening programme evaluator may disclose information in accordance with section 68(2)(a) to (d).

Compare: 1956 No 65 s 112J

54 Delegation of functions and powers

(1)

The Director-General may, in writing, delegate to the NCSP manager any of his or her functions or powers under sections 56(2)(b) and (c), 57(2)(b) and (c), 71(2), 72(2), and 73(2), on any conditions that the Director-General thinks fit.

(2)

The NCSP manager may, in writing, delegate to any person any of his or her functions or powers under this subpart, on any conditions that the NCSP manager thinks fit, except—

(a)

any power or function delegated to the NCSP manager by the Director-General; and

(b)

this power of delegation.

(3)

Subject to any general or special directions given or conditions attached by the NCSP manager or the Director-General, the person to whom any powers are delegated under this section may exercise those powers in the same manner and with the same effect as if they had been conferred on him or her directly under this subpart and not by delegation.

(4)

Any delegation under subsection (2) may be made to a specified person or to the holder or holders for the time being of a specified office or specified class of offices.

(5)

Every person who purports to act under a delegation under this section is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.

(6)

A delegation under this section—

(a)

is revocable, in writing, at will; and

(b)

continues in force until it is revoked, even if the NCSP manager or Director-General by whom it was made ceases to hold office, and continues to have effect as if made by his or her successor in that office.

(7)

A delegation under this section does not affect or prevent the performance or exercise of any function or power by the delegator, and does not affect the responsibility of the delegator for the actions of any person acting under that delegation.

(8)

Subsection (1) does not limit the Director-General’s power to delegate any of his or her functions under—

(a)

this subpart in accordance with section 12; or

(b)

this subpart in accordance with section 41 of the State Sector Act 1988.

Compare: 1956 No 65 s 112K

Duties to provide information to women and to NCSP

55 Duties of persons taking specimens for screening tests

(1)

Every person who takes a specimen from a woman for the purpose of a screening test, and who believes that it is that woman’s first screening test in New Zealand, must—

(a)

explain the procedure and provide information about the importance of having regular screening tests, the objectives of the NCSP, the risks and benefits of participation in the NCSP, who has access to information on the NCSP register, and the uses to which that information may be put; and

(b)

advise the woman that she will be enrolled in the NCSP, but that she may prevent or cancel that enrolment by advising the NCSP manager under section 50.

(2)

Every person who takes a specimen from a woman for the purpose of a screening test, and who believes that it is not that woman’s first screening test in New Zealand, must provide that woman with information about the procedure and about the NCSP, to the extent that is reasonable in the circumstances.

(3)

Subsections (1) and (2) do not limit any other obligation to provide information that arises under any other enactment or rule of law.

Compare: 1956 No 65 s 112L

56 Duty of persons performing colposcopic procedure

(1)

Every person who performs a colposcopic procedure on a woman must—

(a)

explain the procedure to the woman; and

(b)

provide information, to the extent that is reasonable in the circumstances, about the objectives of the NCSP and the NCSP register, the importance of having regular screening tests, who has access to information on the NCSP register, and the uses to which that information may be put; and

(c)

if he or she believes that the woman is not enrolled in the NCSP, advise her that she will be enrolled but that she may prevent or cancel that enrolment by notifying the NCSP manager under section 50; and

(d)

cause a report in relation to that colposcopic procedure to be forwarded to the NCSP manager.

(2)

A report under subsection (1)(d) must—

(a)

be provided free of charge; and

(b)

contain the information specified by the Director-General; and

(c)

be provided in the manner and form specified by the Director-General.

(3)

Subsections (1) and (2) do not limit any other obligation to provide information that arises under any other enactment or rule of law.

Compare: 1956 No 65 s 112M

57 Duty of laboratories where specimens are analysed

(1)

The person in charge of a laboratory where a specimen is analysed must cause a report in relation to that specimen to be forwarded to the NCSP manager if—

(a)

the specimen was obtained for the purpose of a screening test; or

(b)

the specimen was obtained for the purpose of a diagnostic test; or

(c)

the specimen—

(i)

was obtained during a surgical procedure; and

(ii)

includes a cervical component.

(2)

A report under subsection (1) must—

(a)

be provided free of charge; and

(b)

contain the information specified by the Director-General; and

(c)

be provided in the manner and form specified by the Director-General.

Compare: 1956 No 65 s 112N

Review of NCSP and duty of Director-General to report

58 Establishment of NCSP review committee

(1)

The Minister may from time to time, and must at least once every 3 years, establish a review committee of up to 3 persons to review—

(a)

the operation of the NCSP; and

(b)

evaluation activities of the kind described in section 63 that have been carried out or are proposed to be carried out.

(2)

The focus of a review committee must be the continuous quality improvement of components of the NCSP, with a view to reducing the incidence and mortality rates of cervical cancer.

(3)

No person appointed to a review committee may be—

(a)

a member of Parliament; or

(b)

an officer or employee of the Ministry of Health; or

(c)

a person who is, or has been, designated under section 64 as a screening programme evaluator; or

(d)

a person who would have a material conflict of interest if appointed.

(4)

In order to facilitate the review being carried out in a timely and efficient manner, the Minister must appoint persons who collectively have an appropriate balance of skills and knowledge, including knowledge of cervical screening.

(5)

The Minister may appoint persons to the review committee—

(a)

on terms and conditions as to remuneration and other benefits that are in accordance with the appropriate fees framework determined by the Government for statutory and other bodies; and

(b)

on any other terms and conditions that the Minister considers appropriate.

Compare: 1956 No 65 s 112O

59 Work of review committee

(1)

Before beginning its review, the review committee must prepare a review plan.

(2)

In preparing its review plan, the review committee must—

(a)

ensure that the plan—

(i)

applies the focus referred to in section 58(2); and

(ii)

takes into account the need for timeliness in the completion of the review; and

(b)

consult with interested parties about any significant issues that may warrant review, in relation to the operation of the NCSP or evaluation activities that have been, or are proposed to be, carried out; and

(c)

following that consultation, determine—

(i)

which issues are to be reviewed; and

(ii)

the expected date of completion of the review; and

(d)

provide the review plan to the Minister for comment, and fully take into account any comments made by the Minister before finalising that plan.

(3)

After finalising the review plan, the review committee must conduct the review in accordance with that plan.

(4)

When making any recommendations resulting from its review, the review committee must take into account—

(a)

the objectives of the NCSP; and

(b)

the need for fiscal responsibility.

(5)

The review committee may, subject to any written direction by the Minister, regulate its own procedure.

Compare: 1956 No 65 s 112P

60 Review committee’s access to information

(1)

For the purposes of carrying out its review, a review committee may request any information held by the NCSP that is directly relevant to the subject matter of its review.

(2)

The NCSP manager must provide to a review committee any information held by the NCSP that is requested by that review committee under subsection (1).

(3)

To avoid doubt, the confidentiality obligations set out in section 53 apply to members of a review committee.

Compare: 1956 No 65 s 112Q

61 Report by review committee

(1)

The review committee must—

(a)

set out in a report—

(i)

the details of its review; and

(ii)

the conclusions it has reached; and

(iii)

the recommendations (if any) it makes as a result of that review; and

(b)

submit that report to the Minister as soon as reasonably practicable after it is completed.

(2)

The Minister must present the report to the House of Representatives not later than 10 sitting days after the date on which the Minister receives the report from the committee, and, following that presentation, must make the report publicly available.

Compare: 1956 No 65 s 112R

62 Duty of Director-General to report

The Director-General must, from time to time, provide information to the public on the quality and effectiveness of the NCSP including, if it is appropriate, information based on the results of evaluations

Compare: 1956 No 65 s 112S

Screening programme evaluators

63 Meaning of evaluate

(1)

For the purposes of this subpart, evaluate means to monitor and assess the service delivery and outcomes of the NCSP so as to promote the fulfilment of its objectives by determining whether there are any systemic issues to address within the programme or quality improvements that may be made to it.

(2)

An evaluation may, from time to time, include a review of, and an investigation into, the cases of—

(a)

any woman who is enrolled in the NCSP (whether or not she has developed any cervical cancer); and

(b)

any woman who has developed any cervical cancer (whether or not she is enrolled in the NCSP); and

(c)

any deceased persons to whom paragraph (a) or (b) applied at the time of death.

Compare: 1956 No 65 s 112T

64 Director-General may designate screening programme evaluators

(1)

The Director-General may, at any time and entirely at his or her discretion, designate 1 or more persons as screening programme evaluators on whatever terms and conditions the Director-General considers appropriate.

(2)

The Director-General must specify the particular evaluation functions to be performed by each person whom he or she designates as a screening programme evaluator.

(3)

The Director-General may limit the type of information that a person who is designated as a screening programme evaluator may have access to under this subpart in accordance with the evaluation functions to be performed by that person.

Compare: 1956 No 65 s 112U

65 Criteria for designating employees of Ministry

Despite section 64, the Director-General must not designate a person who is an employee of the Ministry as a screening programme evaluator unless the Director-General is satisfied that—

(a)

the person has the technical competence to undertake the functions of a screening programme evaluator; and

(b)

the Ministry and the person will appropriately manage any conflicts of interest that arise.

Compare: 1956 No 65 s 112V

66 Criteria for designating non-employees of Ministry

Despite section 64, the Director-General must not designate a person who is not an employee of the Ministry as a screening programme evaluator unless the Director-General is satisfied that the person—

(a)

has, or employs persons who have, the technical competence to undertake the functions of a screening programme evaluator; and

(b)

has in place effective arrangements to avoid or manage any conflicts of interest that may arise; and

(c)

will administer those arrangements properly and competently and in compliance with any conditions on which the designation is given; and

(d)

will comply with the obligations on that person under this subpart.

Compare: 1956 No 65 s 112W

67 Power of screening programme evaluators to access specimens and health information

(1)

For the purposes of this section and sections 71, 72, and 73, a relevant woman is—

(a)

a woman who is enrolled in the NCSP; or

(b)

a woman who is not enrolled in the NCSP but who has developed any cervical cancer; or

(c)

a deceased woman to whom paragraph (a) or (b) applied at the time of her death.

(2)

Except to the extent that regulations have been made under section 75(1)(c) or (d) limiting access to certain information, or that the Director-General has limited a screening programme evaluator’s access to certain information under section 64(3), a screening programme evaluator has full access to—

(a)

all information held by the persons operating the NCSP; and

(b)

all information on the cancer registry that relates to a relevant woman; and

(c)

all health information and all specimens that relate to a relevant woman and that are held by, or are otherwise under the power and control of, any—

(i)

health practitioner; or

(ii)

laboratory; or

(iii)

hospital.

(3)

A screening programme evaluator may—

(a)

take copies of all information and records to which he or she has access; and

(b)

take any specimen to which he or she has access, or take a part of that specimen.

(4)

A screening programme evaluator may only access or copy information and specimens under subsection (2) or (3) for the purpose of performing, and to the extent necessary to perform, that person’s functions as a screening programme evaluator.

(5)

Subsection (4) is subject to section 74.

(6)

When a screening programme evaluator accesses health information under subsection (2)(c)(i) that is held by, or otherwise in the power or control of, a health practitioner, that health practitioner may oversee that access.

(7)

To avoid doubt, subsection (2) does not affect the Health (Cervical Screening (Kaitiaki)) Regulations 1995.

Compare: 1956 No 65 s 112X

68 Duties of screening programme evaluators

(1)

No screening programme evaluator may use or disclose any evaluation material for a purpose other than performing that person’s functions as a screening programme evaluator.

(2)

Despite subsection (1), a screening programme evaluator may—

(a)

disclose evaluation material to a person who is assisting the screening programme evaluator to perform the screening programme evaluator’s functions, and who requires the material for that purpose; and

(b)

use and disclose evaluation material for the purpose of referring a concern about the competence of a health practitioner to the authority responsible for the registration of practitioners of the profession that the person concerned practises, if the screening programme evaluator has first obtained the consent of the Director-General to use and disclose the material for that purpose; and

(c)

disclose evaluation material to the Accident Compensation Corporation or the Health and Disability Commissioner for the purpose of assisting an investigation into concerns about the competence of a health practitioner; and

(d)

use and disclose evaluation material for the purpose of advising the NCSP manager that, in the screening programme evaluator’s opinion, a particular person who is enrolled in the NCSP may benefit from follow-up action; and

(e)

use evaluation material to prepare academic papers or articles for publication in accordance with section 70.

(3)

Every screening programme evaluator must—

(a)

take appropriate measures to safeguard all evaluation material from use or disclosure for a purpose other than a purpose that is specified in subsection (1) or (2); and

(b)

report to the Director-General any cases where evaluation material has been used or disclosed for an unauthorised purpose; and

(c)

return all evaluation material that was provided in hard copy or electronic form to the supplier of that material as soon as it is no longer required for the purpose for which it was obtained, and destroy all copies of that material; and

(d)

take appropriate measures to keep all specimens in a secure environment that will preserve their physical integrity, and return them to the person who supplied them as soon as they are no longer required for the purpose for which they were obtained; and

(e)

advise each person to whom the screening programme evaluator discloses evaluation material under subsection (2)(a) of the duties of the screening programme evaluator in relation to that information, and of the duties of that person under section 69.

(4)

Every screening programme evaluator who is not an employee of the Ministry must—

(a)

provide to the Director-General, as soon as practicable after completing an evaluation of a screening programme, a written report containing the results of that evaluation; and

(b)

provide to the Director-General, as soon as practicable after being requested by the Director-General to do so, a statutory declaration as to whether or not the requirements of subsection (3)(a) to (c) have been complied with, and, if not, to what extent they have not been complied with.

(5)

Subsections (1) and (3)(a) and (c) are subject to section 74.

Compare: 1956 No 65 s 112Y

69 Duties of persons to whom evaluation material is supplied by screening programme evaluator

(1)

Every person to whom evaluation material is supplied by a screening programme evaluator, under section 68(2)(a), must—

(a)

use that material only for the purpose for which it was supplied; and

(b)

take appropriate measures to safeguard that material from disclosure to any other person; and

(c)

return all evaluation material that was provided in hard copy or electronic form to the screening programme evaluator as soon as it is no longer required for the purpose for which it was supplied, and destroy all copies of it; and

(d)

take appropriate measures to keep all specimens in a secure environment that will preserve their physical integrity, and return them to the screening programme evaluator as soon as they are no longer required for the purpose for which they were supplied.

(2)

Subsection (1) is subject to section 74.

Compare: 1956 No 65 s 112Z

70 Screening programme evaluator may publish non-identifiable information obtained during evaluation

(1)

Despite section 68(1), a screening programme evaluator may publish academic papers or articles that are wholly or partly based on evaluation material obtained by the screening programme evaluator during an evaluation if—

(a)

the paper or article does not contain information that could identify any individual person, without that person’s consent; and

(b)

the NCSP manager consents to the publication of the paper or article and to the timing of that publication; and

(c)

the publication of the paper or article is in accordance with any regulations made under section 75(1)(f).

(2)

The NCSP manager may not withhold consent under subsection (1)(b) unless he or she believes, on reasonable grounds, that the publication of the paper or article, or the proposed timing of that publication, poses a serious risk to the effective operation of the NCSP.

Compare: 1956 No 65 s 112ZA

Duties to provide information to screening programme evaluators

71 Duty of health practitioners

(1)

Every health practitioner must make available, free of charge, to a screening programme evaluator, for the purpose of enabling that screening programme evaluator to perform the screening programme evaluator’s functions, any health information and specimens that relate to a relevant woman.

(2)

The Director-General may specify, by notice in writing to the health practitioner, the manner and form in which health information or specimens that are required to be made available under subsection (1) must be made available, and that information or those specimens must be made available in that manner and form.

Compare: 1956 No 65 s 112ZB

72 Duty of persons who hold specimens

(1)

The person in charge of a laboratory or other premises where specimens are held must make available, free of charge, to a screening programme evaluator, for the purpose of enabling that screening programme evaluator to perform the screening programme evaluator’s functions, any health information and specimens that relate to a relevant woman.

(2)

The Director-General may specify, by notice in writing to the person in charge of the laboratory or other premises, the manner and form in which health information or a specimen that is required to be provided under subsection (1) must be provided, and that information or that specimen must be provided in that manner and form.

Compare: 1956 No 65 s 112ZC

73 Duty of hospitals

(1)

The person in charge of a hospital must make available, free of charge, to a screening programme evaluator, for the purpose of enabling that screening programme evaluator to perform the screening programme evaluator’s functions, any health information and specimens that relate to a relevant woman.

(2)

The Director-General may specify, by notice in writing to the person in charge of the hospital, the manner and form in which health information or a specimen that is required to be provided under subsection (1) must be provided, and that information or that specimen must be provided in that manner and form.

Compare: 1956 No 65 s 112ZD

Miscellaneous

74 Screening programme employees may retain, access, use, and disclose information to perform functions

(1)

Nothing in this subpart prevents any employee of the NCSP from retaining, accessing, using, and disclosing any information to the extent necessary to perform his or her functions as an employee of that programme, including—

(a)

information that is held by or accessible to the persons operating the NCSP; and

(b)

information and evaluation material obtained by that employee for the purposes of performing an evaluation (including information obtained in his or her capacity as a screening programme evaluator or as a person assisting a screening programme evaluator); and

(c)

information and evaluation material provided to the NCSP by a screening programme evaluator during or following an evaluation.

(2)

For the purposes of subsection (1), a person is an employee of the NCSP if the person—

(a)

is appointed to operate that programme, or to perform particular functions in relation to the operation of that programme, by the Director-General or the Ministry; or

(b)

is employed to work in that programme by the Ministry or by the persons appointed to operate the programme.

Compare: 1956 No 65 s 112ZE

75 Regulations

(1)

The Governor-General may, by Order in Council, make regulations under this subpart for any 1 or more of the following purposes:

(a)

regulating access to information held by the NCSP by persons researching cancer:

(b)

prohibiting the disclosure, under section 53(1)(h), of information that relates to any class or classes of person specified in the regulations, including prohibiting the disclosure of that information without the approval of any person or group of persons or body or organisation specified in the regulations:

(c)

imposing restrictions, in addition to those imposed by this subpart, on the use, disclosure, and publication of information held by the NCSP:

(d)

prohibiting the use, disclosure, and publication of information from the NCSP register, or derived from the operation of the NCSP, if the information relates to any class or classes of person specified in the regulations, including prohibiting the use, disclosure, and publication of that information without the approval of any person or group of persons or body or organisation specified in the regulations:

(e)

providing for the establishment, appointment, procedures, and powers of any person or group of persons or body or organisation established to perform specific functions or to make specific decisions that relate to the NCSP or to the matters referred to in paragraphs (b) and (d):

(f)

imposing restrictions on the publication by screening programme evaluators, under section 70, of academic papers or articles that are wholly or partly based on evaluation material obtained for the purposes of an evaluation:

(g)

prescribing standards that must be met by providers of screening, diagnostic, and treatment services relevant to the NCSP, and the means of implementing those standards:

(h)

prescribing offences for a breach of—

(i)

a regulation made under any of paragraphs (a) to (f):

(ii)

a standard prescribed under paragraph (g), or any part of that standard:

(i)

setting out defences to offences prescribed under paragraph (h):

(j)

setting the maximum penalty for each offence prescribed under paragraph (h), which must not exceed the maximum penalty specified in section 368.

(2)

Before making regulations under subsection (1), the Governor-General must be satisfied that appropriate consultation has been carried out, including (without limitation),—

(a)

adequate and appropriate notice of the intention to make the regulations; and

(b)

a reasonable opportunity for interested persons to make submissions; and

(c)

adequate and appropriate consideration of any submissions received.

(3)

Subsection (2) does not apply to regulations made under subsection (1)(g) that—

(a)

incorporate standards by reference; or

(b)

state that an amendment to, or replacement of, standards incorporated by reference has legal effect as part of the regulations.

Compare: 1956 No 65 s 112ZF

76 Incorporation of standards by reference in regulations

(1)

Regulations made under section 75(1)(g) may incorporate by reference any standards prepared by or for the NCSP that apply to providers of screening, diagnostic, and treatment services (including, but not limited to, any New Zealand Standard).

(2)

This section is subject to sections 337 to 344 (the standard provisions about incorporation by reference).

77 Application of Standards Act 1988 not affected

Section 76 does not affect the application of sections 22 to 25 of the Standards Act 1988.

78 Offences under this subpart

(1)

Every person commits an offence against this Act who, without reasonable excuse, fails to comply with the requirements of any of sections 53(1), 68(1), (3)(e), or (4)(b) or 69.

(2)

Every person commits an offence against this Act who, without reasonable excuse, fails to make available any information or specimens that the person is required to make available under any of sections 71, 72, and 73.

(3)

Every person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine not exceeding $10,000.

Part 3 Non-communicable diseases

Subpart 1—Interpretation

79 Interpretation

In this Part, unless the context otherwise requires,—

consumer representatives, in relation to any matter concerning any proposed or current code of practice or guidelines, means any individuals or organisations who, in the opinion of the Minister, represent the interests of consumers who are likely to be substantially affected by the matter

risk factor means a thing, or substance, activity, or form of energy that, on its own or together with other things or substances or conditions, substances, activities, or forms of energy, may, whether immediately or over time, give rise to, or increase the incidence of, non-communicable diseases (such as cancer, cardio-vascular disease, or diabetes, or any mental illness) in the general population or in communities or in sections of the general population or communities

sector means a group of individuals, associations of persons, departments, local authorities, or bodies corporate involved in—

(a)

the manufacture, importing, distributing, or retailing of goods or substances of a particular kind; or

(b)

the provision of a service of a particular kind; or

(c)

the formulation or implementation of policies for consideration or adoption by central government or local government; or

(d)

the design, construction, or maintenance of buildings, infrastructure, or works of any kind; or

(e)

the advertising, promoting, sponsoring, or marketing of goods or substances of a particular kind or services of a particular kind.

sector representatives, in relation to any matter concerning any proposed or current code of practice or guidelines means any individuals or organisations that, in the opinion of the Minister, represent a sector that is substantially affected by the matter

significant means more than negligible.

Subpart 2—Principles

80 Principles

In performing his or her functions under this Part, the Director-General and the Minister must take into account the importance of—

(a)

improving and enhancing the health of communities by addressing broad determinants of health, including, in particular, risk factors:

(b)

managing or eliminating risk factors by involving communities, sectors, and government agencies:

(c)

consultation, cross-sectoral collaboration, and joint planning and implementation by central government, DHBs, iwi authorities, local authorities, and other relevant organisations:

(d)

the well-being and mutual interdependence of families and their communities, including whānau, hapū, and iwi:

(e)

focusing public health action on the health status of the general population, Māori, and other communities:

(f)

promoting, maintaining, and enhancing the health status of the general population, Māori, and other communities:

(g)

working towards social and cultural environments conducive to health and well-being:

(h)

engaging with providers, including non-governmental organisations, in the implementation of public health objectives and implementing public health those objectives through co-ordinated action in the throughout the health sector, and, in particular, ensuring appropriate links between public health and primary health.

Subpart 3—Codes of practice and guidelines

81 Director-General may issue codes of practice or guidelines

(1)

The Director-General may issue a code of practice or a set of guidelines to a sector on a particular activity that the sector undertakes if the Director-General has reason to believe that the sector can reduce, or assist in reducing, a risk factor associated with, or related to, the activity.

(2)

The Director-General may amend or revoke a code of practice or guidelines issued under subsection (1).

(3)

The Director-General, when issuing, amending, or revoking a code of practice or guidelines, must—

(a)

notify the issue, amendment, or revocation of the code or guidelines in the Gazette; and

(b)

show in the notice the date of the issue, amendment, or revocation of the code or guidelines; and

(c)

specify in the notice the place or places at which copies of the code, the guidelines, or the amendment are available for inspection or purchase.

(4)

The Director-General must ensure that copies of the codes of practice or guidelines and any amendments to those codes or guidelines are available for inspection at the place or places specified in the notice given under subsection (3).

82 Prior consultation required

Before the Director-General issues a code of practice or guidelines or amends or revokes a code or guidelines, the Director-General must consult with any person or organisation sector representatives and consumer representatives and any other persons that the Director-General considers to be representative of the sector affected by the proposed code or guidelines, amendment, or revocation. appropriate.

83 What code of practice or guidelines may provide

(1)

A code of practice or guidelines may provide for an activity, or aspects of an activity, to be undertaken in ways that, in the opinion of the Director-General, are likely to reduce, or assist in reducing, a risk factor associated with, or related to, the activity.

(2)

Without limiting the generality of subsection (1), a code of practice or guidelines may, in relation to any activity, contain provisions on any of the following matters that are relevant to the activity:

(a)

the development, completion, and review of health impact assessments:

(b)

the development and maintenance of practices that are conducive to promoting health and safety:

(c)

the performance, composition, contents, additives, design, and construction of specified goods or substances:

(d)

the accessibility of specified goods, substances, or services to members of the public or to sections of the public, in particular, to minors:

(e)

the ways in which specified goods, substances, or services are advertised, sponsored, or marketed (whether directly or indirectly):

(f)

the information to be given to consumers of specified goods, substances, or services, whether as part of any advertising, sponsorship, or marketing or as part of any packaging or labelling of goods or substances.

(3)

Except as provided in subsection (2)(e) and (f), no code of practice or guidelines may contain provisions concerning the content of any matter that is published in any form or broadcast on any medium.

83A Code of practice must state objectives and targets or measures

Every code of practice and every set of guidelines must

(a)

state, as its objective, the contribution that compliance with the code or guidelines is intended to make in reducing a specified risk factor or specified risk factors; and

(b)

set targets or measures against which any progress made in achieving that objective can be assessed.

84 Codes of practice and guidelines to avoid overlap with enactments

In issuing or amending a code of practice or guidelines, the Director-General must endeavour to avoid including any provisions that overlap with matters contained in an enactment.

85 Compliance with code of practice or guidelines may be advertised with permission of Director-General

(1)

If the Director-General is satisfied that particular goods, substances, or services comply with a code of practice or guidelines issued under this Part, the Director-General may permit a statement stating the fact of compliance to be included in—

(a)

any material by which goods, substances, or services are advertised, promoted, sponsored, or marketed; or

(b)

any communication to employees concerning health or safety.

(2)

A statement of the kind described in subsection (1) may not be included in any material or communication of the kind described in that subsection without the permission of the Director-General.

(3)

A person who, without the permission of the Director-General, publishes, or arranges for the publication of a statement of the kind described in subsection (1) in any material or communication of the kind described in that subsection, commits an offence and is liable on summary conviction to a fine not exceeding $10,000.

(4)

If a person is convicted of an offence under subsection (3), the Court may, on the application of the Director-General, in addition to any penalty that the Court may impose under that subsection, order that person to pay an amount not exceeding the value of any commercial gain resulting from the contravention if the Court is satisfied that the contravention occurred in the course of producing a commercial gain.

(5)

The value of any gain must be assessed by the Court, and any amount ordered to be paid is recoverable in the same manner as a fine.

(6)

The standard of proof in proceedings under subsection (4) is the standard of proof that applies in civil proceedings.

86 Incentives for compliance with codes of practice or guidelines

The Minister may, by notice in the Gazette,—

(a)

institute 1 or more types of awards to recognise compliance with codes of practice or guidelines, and may differentiate those awards by specified standards of compliance:

(b)

authorise the Director-General to confer those awards:

(c)

authorise the Director-General to withdraw any awards conferred:

(d)

state the criteria that the Director-General must apply in conferring, or withdrawing, any awards:

(e)

state the manner in which the Director-General must publicly notify the conferral or withdrawal of awards (including, without limitation, publication on the Internet):

(f)

recommend that, in any decision affecting a product or service, government departments or Crown entities have regard to the question whether or not the manufacturer of the product or the provider of the service complies with any applicable code of practice or guidelines.

87 Codes of practice and guidelines not legally enforceable

(1)

No code of practice or guidelines issued or amended under this Part confers rights or obligations capable of enforcement in any civil or criminal proceeding.

(2)

However, this section does not preclude the admissibility in any proceeding of the fact that a provider of goods, substances, or services complied with, or did not comply with, the applicable code of practice or guidelines, if that fact is relevant in the proceeding.

Subpart 4—Review of this Part

88 Report to Minister

(1)

The Ministry of Health Director-General must, not later than the date that is 3 years after the commencement of this Act, report to the Minister on—

(a)

the number and subject matters of codes of practice and guidelines issued or amended under this Part; and

(b)

the extent to which those codes and guidelines have, or are likely to have, met their objective of reducing, or assisting in the reduction of, risk factors; and objectives and the extent to which their targets or measures have been achieved; and

(c)

the extent to which sectors have supported and complied with codes of practice and guidelines; and

(d)

whether it is desirable that the law be changed so that codes of practice are binding on the participants of sectors to which they apply; and

(e)

whether it is desirable to amend this Act to include further specific provisions for the purpose of preventing, or reducing the impact of, non-communicable diseases or improving the management of risk factors, including, without limitation, provisions that empower regulations to be made for that purpose; and

(f)

the number and subject matters of notices by the Minister published under section 86 and the actions taken under those notices; and

(g)

the extent to which those actions have, or are likely to have, reduced, or assisted in the reduction of, risk factors; and

(h)

whether any further reductions in risk factors can be achieved by non-legislative options, such as the promotion of rewards or incentives; and

(i)

any other matter that the Director-General considers relevant.

(2)

As soon as practicable after receiving a report from the Ministry, the Minister must present a copy of it to the House of Representatives.

(3)

The Governor-General may, by Order in Council, extend, on 1 or more no more than 2 occasions, the date on which the Ministry of Health is required to report under subsection (1).

Subpart 5Regulations

88A Consultation by Minister if no significant progress in achieving objective of code or guidelines

If the Minister has reasonable grounds to believe that a code of practice or a set of guidelines that has been in place for not less than 2 years has not made significant progress in achieving its objective, the Minister may consult sector representatives and consumer representatives and any other person the Minister considers appropriate about the following matters:

(a)

whether the code of practice or the set of guidelines has in fact failed to make significant progress in achieving its objective:

(b)

whether progress in achieving that objective is likely to be made by amending or reissuing the code or the guidelines:

(c)

whether progress in achieving that objective is more likely to be made by replacing the code or guidelines, in whole or in part, by regulations made under section 88C:

(d)

any other matter that the Minister considers relevant.

88B Minister may recommend regulations

(1)

This section applies if, after consulting on a code of practice or a set of guidelines under section 88A, the Minister is satisfied on reasonable grounds that

(a)

the code or the set of guidelines has not made significant progress in achieving its objective; and

(b)

progress in achieving that objective is more likely to be made by replacing the code or guidelines, in whole or in part, by regulations made under section 88C.

(2)

The Minister may recommend that regulations be made under section 88C to replace the code or the guidelines in whole or in part.

88C Regulations

(1)

The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister made under section 88B, make regulations for all or any of the following purposes:

(a)

reducing, or assisting in reducing, risk factors:

(b)

without limiting the generality of paragraph (a), providing for the ways in which specified goods, substances, or services are advertised, sponsored, or marketed (whether directly or indirectly):

(c)

without limiting the generality of paragraph (a), providing for the information to be given to consumers of specified goods, substances, or services, whether as part of any advertising, sponsorship, or marketing or as part of any packaging or labelling of goods or substances:

(d)

prescribing offences in respect of the contravention of or non-compliance with any regulations made under this section, and the amounts of fines that may be imposed in respect of any such offences not exceeding $5,000.

(2)

Except as provided in subsection (1)(b) and (c), no regulations made under this section may regulate or limit the content of any matter that is published in any form or broadcast on any medium.

Part 4 Management of conditions posing health risks

Subpart 1—Application, overarching principles, and role of District Courts

Application

89 Application

This Part (other than subpart 4 or 5) applies to a condition that is—

(a)

part of a cluster or outbreak that has been reported under subpart 3 of Part 2; or

(b)

a notifiable disease or other notifiable condition; or

(c)

a case of a condition that has been reported under section 31.

Overarching principles

90 Principles to be taken into account

The principles set out in sections 91 to 93 are to be taken into account by every person and every court performing a function under this Part.

91 Least restrictive alternative

In any case where this Part enables alternative measures to be applied to an individual, preference must be given to the least restrictive measure that, in the judgment of the person or court concerned, will achieve the objective of minimising the health risk posed by the individual.

92 Respect for individuals

An individual in respect of whom a power is exercised under this Part should be treated with respect and consideration, to the extent that the protection of public health permits this to be done.

93 Individual to be informed

A person exercising a power over an individual under this Part should must, so far as is practicable in the circumstances, promptly inform the individual and in a way the individual is most likely to understand, about—

(a)

the nature of the power that is exercised and its implications for the individual:

(b)

any steps planned to be taken in respect of the individual:

(c)

any right of the individual to appeal against the exercise of the power and to apply for judicial review.

Role of District Courts

94 Proceedings under this Part in District Courts to be heard by Family Court Judges, if practicable

(1)

The District Court has jurisdiction to hear and determine—

(a)

appeals under this Part against directions given; and

(b)

applications made under this Part.

(2)

Every proceeding referred to in subsection (1) must, if practicable, having regard to the time required, and to the availability of Judges and other personnel and resources, be heard and determined by a Family Court Judge.

(3)

Any District Court Judge may hear and determine a proceeding referred to in subsection (1) that cannot practicably be heard and determined by a Family Court Judge.

94A Proceedings under this Part not open to public

(1)

Unless the Judge presiding at a hearing of a proceeding referred to in section 94(1) otherwise directs, no person may be present during the hearing except the following:

(a)

the Judge:

(b)

officers of the Court:

(c)

parties to the proceeding and their barristers and solicitors, and any other person nominated by the individual who is the subject of the proceeding:

(d)

witnesses:

(e)

any other person whom the Judge permits to be present.

(2)

A witness must leave the courtroom if asked to do so by the Judge.

(3)

This section does not limit any other power of the Court to hear proceedings in private or to exclude any person from the Court.

Compare: 1992 No 46 s 24

94B Court may appoint lawyer to act for individuals under 16

Whenever an individual under the age of 16 is the subject of an application under this Part, the court that hears the application may appoint a lawyer to act for the individual.

Subpart 2—Directions that may be given to individuals believed to have specified conditions

Kinds of direction that may be given

95 Directions that may be given to manage health risk posed by condition to which this Part applies

(1)

This section applies if a medical officer of health believes on reasonable grounds that an individual poses a health risk because the individual has a condition to which this Part applies.

(2)

The medical officer of health may give the individual whichever 1 or more directions described in subsection (4) the medical officer of health thinks are necessary to prevent or minimise the health risk posed by the individual.

(3)

If the condition that the individual is believed to have is not a notifiable disease or other notifiable condition, every direction given to the individual must have the prior approval of the Director-General.

(4)

A direction given under subsection (2) may require the individual to,—

(a)

participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the condition to which this Part applies:

(b)

refrain from carrying out specified activities (for example, without limitation, employment, use of public transport, travel within and out of New Zealand) either absolutely or unless stated conditions are observed:

(c)

refrain from going to specified places either absolutely or unless stated conditions are observed:

(d)

refrain from associating with specified persons or specified classes of persons:

(e)

take specified actions to prevent or minimise the health risk posed by the individual:

(f)

stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(g)

accept the supervision of a named person or a person for the time being holding a named office, including, without limitation, appearing at meetings arranged by that person and providing that person with information on any action, occurrence, or plan that is relevant to the health risk posed by the individual.

(5)

In no case may a direction require an individual to submit to compulsory treatment.

(6)

Subsection (7) applies if a direction requires an individual to refrain from carrying out a specified activity either absolutely or unless stated conditions are observed and a medical officer of health believes on reasonable grounds that—

(a)

the individual is, or has been, engaging in the activity; and

(b)

the persons responsible for the activity need to be informed in order to prevent or minimise the health risk posed by the individual.

(7)

The medical officer of health may contact any person who occupies a position of responsibility in relation to the activity and tell that person about 1 or more of the following matters:

(a)

the direction:

(b)

the health risk posed by the individual’s engagement in the activity:

(c)

ways of minimising that risk.

(8)

The medical officer of health must send the Director of Public Health a copy of every direction.

96 Duration of directions

(1)

A direction given under section 95 ceases to have effect with the close of the earliest of the following days:

(a)

the last day of the period stated in the direction or, if no period is stated in the direction, the period of 6 months commencing with the date on which the direction is given:

(b)

the day (if any) on which the medical officer of health notifies the individual that the individual no longer poses a health risk:

(c)

the day (if any) on which the medical officer of health rescinds the direction under section 101:

(d)

the day (if any) on which the direction is cancelled on appeal under section 103.

(2)

The period stated in a direction may not exceed 6 months.

(3)

The medical officer of health must—

(a)

regularly review each direction under section 95 that is in effect in the health district or districts for which the officer is responsible; and

(b)

consider whether the direction is still needed; and

(c)

if directed by the Director of Public Health to do so, advise that Director why the direction needs to continue in effect.

(4)

A medical officer of health may at any time, by notice to the individual concerned, extend a direction previously given under section 95 for a period stated in the notice (not exceeding 6 months).

(5)

Subsection (4) also applies to a direction that has previously been extended on 1 or more occasions.

(6)

The medical officer of health must send the Director of Public Health a copy of every notice under subsection (4).

97 Direction for medical examination

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

an individual may have a condition to which this Part applies (for example, without limitation, because the individual has been in contact with a person who has the condition); and

(b)

the individual’s medical practitioner, a prescribed person, or a medical officer of health has requested the individual to undergo, within a specified period, a medical examination to establish whether or not the individual has the condition and the individual has not undergone that examination within that period; and

(c)

if the individual has the condition, the individual would pose a health risk.

(2)

The medical officer of health may direct the individual to undergo 1 or more medical examinations and may specify the places where those examinations are to be conducted and the health providers who are to conduct them.

(3)

The medical officer of health may also direct the individual to take or refrain from taking, until those examinations are completed, whichever 1 or more of the following actions the medical officer of health thinks are necessary to prevent or minimise the health risk that the individual may pose:

(a)

to stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(b)

to refrain from carrying out specified activities (for example, without limitation, employment, use of public transport, travel within and out of New Zealand) either absolutely or unless stated conditions are observed:

(c)

for the purpose of monitoring and guiding the individual’s compliance with the direction, to accept the supervision by a named person or by a person for the time being holding a named office.

(4)

The medical officer of health must send the Director of Public Health a copy of every direction.

98 Direction requiring contacts to stay in specified place

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

the individual has been in contact with a person who has a condition to which this Part applies; and

(b)

if the condition has been communicated to the individual, the individual poses, or is likely to pose, a health risk.

(2)

The medical officer of health may give the individual whichever 1 or more of the following directions the medical officer of health thinks are necessary to minimise the health risk posed by the individual:

(a)

to stay, at all times or at specified times, at a specified place of residence, subject to specified conditions:

(b)

to refrain from carrying out specified activities (for example, without limitation, employment, use of public transport, travel within and out of New Zealand) either absolutely or unless stated conditions are observed:

(c)

for the purpose of monitoring and guiding the individual’s compliance with the direction, to accept the supervision by a named person or by a person for the time being holding a named office.

(3)

The direction ceases to have effect with the close of the day on which the medical officer of health notifies the individual that the individual no longer poses a health risk.

(4)

In determining, for the purposes of subsection (3), that the individual no longer poses a health risk, the medical officer of health must have regard to any known incubation period for the condition.

(5)

The medical officer of health must send the Director of Public Health a copy of the direction.

99 Directions in respect of educational institutions

(1)

This section applies if a medical officer of health believes on reasonable grounds that an individual—

(a)

either—

(i)

has a condition to which this Part applies in respect of which a period of incubation is prescribed for the purposes of this Part; or

(ii)

shares a residence with a person who has such a condition; and

(b)

attends an educational institution to study, be cared for, or work at the institution.

(2)

The medical officer of health may direct the individual not to attend the an educational institution.

(3)

The medical officer of health must notify the person in charge of the institution about the direction and, if appropriate, provide information on the management of the relevant health risk.

(4)

If the individual is a minor under 16 years of age, the direction must be given to the individual’s guardian and also to the individual unless the medical officer of health has reasonable grounds to believe that the individual is incapable of understanding the direction.

(5)

The direction ceases to have effect with the close of the day on which the medical officer of health notifies the individual that the individual no longer poses a health risk.

(6)

In determining, for the purposes of subsection (5), that the individual no longer poses a health risk, the medical officer of health must have regard to any known incubation period for the condition.

(7)

The medical officer of health must send a copy of the direction to the Director of Public Health.

(8)

In this section, educational institution means any place where people gather for the purposes of education or training, and includes an early childhood education and care centre within the meaning of section 310(1) of the Education Act 1989.

General provisions concerning directions

100 Repeated directions may be given

A direction under this subpart may be given to an individual on 1 or more occasions.

101 Directions may be varied or rescinded

A medical officer of health may at any time, by notice to the individual concerned, vary or rescind a direction previously given.

102 Written directions and notices to be served on individual

A direction or notice under this subpart must be in writing and must be served on the individual to whom it is given.

103 Appeal against direction

(1)

An individual who is required to comply with a direction may appeal against the direction, or any part of the direction, to the District Court.

(2)

On the appeal, the District Court may confirm, vary, or cancel the direction.

(3)

The commencement of the appeal does not affect the direction unless the District Court otherwise orders.

Compliance with directions

104 Duty to comply

(1)

An individual to whom a direction is given must comply with the direction.

(2)

Every individual commits an offence who intentionally fails to comply with a direction with which the individual is required to comply and is liable on summary conviction to a fine not exceeding $10,000.

105 Force not permissible

In no case may force be used to secure compliance with a direction.

Subpart 3—Orders to protect against health risks

Urgent health risk orders

106 Medical officer of health may make urgent health risk order

(1)

This section applies if a medical officer of health believes on reasonable grounds that—

(a)

an individual has a condition to which this Part applies; and

(b)

the individual poses a health risk; and

(c)

to address the risk a health medical officer of health needs to take urgent action; and

(d)

it is not practicable to obtain a court order urgently.

(2)

The medical officer of health may sign, and give, or authorise another person to give, the individual, an urgent health risk order that requires the individual to be detained at specified premises or specified parts of premises, subject to any stated conditions.

(3)

If the condition that the individual is believed to have is not a notifiable disease or other notifiable condition, the urgent health risk order may not be given to the individual without the prior approval of the Director-General.

(4)

The medical officer of health must write on the order the date and time it is given to the individual.

(5)

The medical officer of health must send a copy of the urgent health risk order to the Director of Public Health.

107 Duration of urgent health risk order

An urgent health risk order has effect for 72 hours from the time that it is given to the individual.

General provisions concerning orders by Court

108 Matters that Court may take into account in assessing health risk

In assessing, for the purposes of any application under this subpart, whether or not an individual poses a health risk, the Court may, without limitation, take into account—

(a)

the condition that the individual has or, as the case requires, that the individual may have:

(b)

if the individual has had an opportunity to minimise the risk of communicating the condition, whether he or she has done so, or the extent to which he or she has done so, and, in particular,—

(i)

if directions have been given to the individual under subpart 2 of this Part, whether the individual has complied with, or the extent to which the individual has complied with, those directions:

(ii)

if a medical practitioner, prescribed person, or medical officer of health or health protection officer has requested the individual to take steps to prevent or minimise the risk, whether the individual has responded to those requests or the extent to which the individual has responded to those requests.

109 Relationship between directions and court orders

(1)

The Court may make an order that corresponds to, or differs from, any direction previously given.

(2)

Any direction previously given to an individual ceases to have effect when an order is made in respect of that individual under this subpart.

(3)

However, nothing in this section or in any other provision of this Act requires a prior direction before an order under this subpart may be made.

Health risk orders

110 Prior consultation with individual and individual’s family or whanau

(1)

If a medical officer of health is considering applying to the Court for a health risk order under section 113, the medical officer of health must, whenever practicable, consult with the individual and may, at his or her the officer’s discretion, consult with the individual’s family or whanau.

(2)

The purpose of consultation under subsection (1) is to enable the medical officer of health—

(a)

to ascertain if the need for an order of that kind can be avoided by voluntary compliance by the individual and, if the individual agrees, by any assistance on the part of the family or whanau; and

(b)

to ascertain, if an order of that kind is required, the extent to which the terms of the order and the manner of its administration can take into account the needs and wishes of the individual without prejudicing the protection of public health.

111 Case conferences

The consultation under section 110 may, at the discretion of the medical officer of health take the form of a case conference, which may be conducted by telephone or video link.

112 Application for health risk order

(1)

A medical officer of health may apply, under section 113, for a health risk order in respect of an individual.

(2)

If the condition that the individual is believed to have is not a notifiable disease or other notifiable condition, the application may not be made without the prior approval of the Director-General.

(3)

The medical officer of health must send a copy of the application to the Director of Public Health.

113 Health risk order

The Court may, on an application made under section 112, make a health risk order in respect of an individual if satisfied—

(a)

that the individual has a condition to which this Part applies; and

(b)

that the individual poses a health risk.

114 Order may impose certain requirements on individual

(1)

The Court may, in making a health risk order under section 113, impose on an individual whichever 1 or more of the following requirements the Court thinks are necessary to prevent or minimise the health risk posed by the individual:

(a)

to be detained, at all times or at specified times, in a hospital or other suitable place or in specified parts of the hospital or place:

(b)

to stay, at all times or at specified times, at a specified place of residence:

(c)

to refrain from carrying out specified activities (for example, without limitation, employment, use of public transport, travel within and out of New Zealand) either absolutely or unless stated conditions are observed:

(d)

to accept the supervision of to be supervised by a named person or a person for the time being holding a named office, including, without limitation, appearing at meetings arranged by that person and providing that person with information on any action, occurrence, or plan that is relevant to the health risk posed by the individual:

(e)

after taking into account the views of the individual, to be subject to surveillance, with or without the aid of electronic devices, by a named person or by a person for the time being holding a named office or by a named organisation:

(f)

to accept treatment for the condition from to be treated for the condition by a specified health provider:

(g)

to participate in any of the following that are conducted by a health provider:

(i)

counselling:

(ii)

education:

(iii)

other activities related to the condition to which this Part applies:

(h)

to refrain from going to specified places either absolutely or unless stated conditions are observed:

(i)

to refrain from associating with specified persons or specified classes of persons:

(j)

to take specified actions to prevent or minimise the health risk posed by the individual.

(2)

Before the Court imposes a requirement of the kind described in subsection (1)(f), the Court must be satisfied that, short of detaining the individual indefinitely, treating him or her is the only effective means of managing the health risk posed by the individual.

(2A)

Where an order requires an individual to be detained in a hospital or other place operated by a DHB, the DHB must permit the individual to be detained in the hospital or place.

(3)

The Court may impose any requirement specified in subsection (1) subject to any conditions or restrictions that the Court considers appropriate.

115 Duration of order or requirements

(1)

An order made under section 113 ceases to have effect with the close of the earliest of the following days:

(a)

the last day of the period stated in the order or, if no period is stated in the order, the period of 6 months commencing with the date on which the order is made:

(b)

the day (if any) on which the medical officer of health notifies the individual that the individual no longer poses a health risk:

(c)

the day (if any) on which the Court cancels the order under section 120:

(d)

the day (if any) on which the direction is cancelled on appeal under section 122 or 123.

(2)

A requirement imposed under section 114 by an order ceases to have effect with the close of the earlier of the following days:

(a)

the day on which the order ceases to have effect:

(b)

the day (if any) on which the medical officer of health notifies the individual that the requirement is no longer necessary to manage the health risk posed by the individual.

(3)

The period stated in an order may not exceed 6 months.

(4)

If no period is stated in an order and the individual does not receive a notice of the kind described in subsection (1), the order has effect for 6 months.

116 Health risk order may be extended

(1)

The Court may at any time, on the application of a medical officer of health, extend a health risk order made under section 113 for a period of not more than 6 months if the Court—

(a)

is satisfied that the Court has jurisdiction to make a new order of the same kind in respect of the individual concerned; and

(b)

considers it is desirable to do so.

(2)

The Court may extend an order on 1 or more occasions.

Medical examination orders and orders concerning contacts

117 Order for medical examination

(1)

The Court may, on the application of a medical officer of health, make an examination order in respect of an individual if the Court is satisfied that—

(a)

the individual may have a condition to which this Part applies (for example, because the individual is, or has been, in contact with a person who has a notifiable disease or other notifiable condition); and

(b)

the individual’s medical practitioner, a prescribed person, or a medical officer of health has requested the individual to undergo, within a specified period, a medical examination to establish whether or not the individual has that condition and the individual has not undergone that examination within that period; and

(c)

if the individual has that condition, the individual would pose a health risk.

(2)

The examination order must direct the individual to undergo specified whatever medical examinations the medical officer of health considers necessary to establish whether or not the individual has the condition concerned.

(3)

The examination order may also impose on the individual, until those examinations are completed, whichever 1 or more of the requirements stated in section 114(1)(b), (c), (h), and (i) that the Court thinks are necessary to prevent or minimise the health risk that the individual may pose.

(4)

The Court may impose any requirement referred to in subsection (3) subject to any conditions or restrictions that the Court thinks appropriate.

118 Court may make health risk order contingent on examinations proving positive

(1)

When the Court makes an examination order in respect of an individual, the Court may also make a health risk order under section 113.

(2)

A order made in the circumstances referred to in subsection (1),—

(a)

must meet the jurisdictional requirements set out in section 113, except that the Court may assume that the individual has the condition for which he or she is to be examined; and

(b)

takes effect, if at all, in accordance with subsection (3).

(3)

The order takes effect only if a medical officer of health signs and dates a certificate that states that the individual has undergone the examinations in accordance with the examination order, and that those examinations establish that the individual has the condition for which he or she has been examined.

(4)

The order may be sealed only if the Registrar of the Court has sighted and filed the certificate described in subsection (3).

119 Order for contacts

(1)

The Court may, on the application of a medical officer of health, make an order in respect of an individual if the Court is satisfied that—

(a)

the individual has been in contact with a person who has a condition to which this Part applies; and

(b)

if that condition has been communicated to the individual, the individual poses, or will pose, a health risk.

(2)

The order may also impose on the individual whichever 1 or more of the requirements stated in section 114(1)(b), (c), (d), (h), (i), and (j) that the Court thinks are necessary to prevent or minimise the health risk that the individual may pose.

(3)

The Court may impose any requirement referred to in subsection (2), subject to any conditions or restrictions that the Court considers appropriate.

(4)

The order ceases to have effect with the close of the day (if any) on which the medical officer of health notifies the individual that the individual no longer poses a health risk.

(5)

In determining, for the purposes of subsection (4), that the individual no longer poses a health risk, the medical officer of health must have regard to any known incubation period for the condition.

General provisions concerning orders

120 Court may cancel or vary orders

(1)

The Court may, on the application of the medical officer of health or of the individual concerned, cancel an order made under this subpart if the Court is satisfied that the order is no longer required.

(2)

The Court may, on the application of the medical officer of health or of the individual concerned, vary the terms of an order made under this subpart by making a determination that the Court is otherwise authorised to make under this subpart and that the Court considers desirable in the circumstances.

(3)

The medical officer of health must send a copy of every application under this section to the Director of Public Health.

121 Medical officer of health and individual may agree on variation

(1)

This section applies if—

(a)

an order (other than an urgent health risk order) under this subpart is in effect; and

(b)

a medical officer of health is satisfied that the health risk posed by the individual who is the subject of the order can be met by a less restrictive measure than that provided for by the order.

(2)

The medical officer of health and the individual may agree in writing that the individual may comply with the order by accepting, and complying with, the less restrictive measure.

(3)

An agreement under subsection (2) has effect according to its tenor, as long as the individual complies with the agreement.

(3A)

If the medical officer of health believes on reasonable grounds that the individual has breached the agreement in a material respect, the medical officer of health may, by written notice to the individual, cancel the agreement and the order then has effect in its original form.

(4)

The power conferred by subsection (2) is subject to any directions, conditions, or limitations concerning the power given or imposed by the Court.

(5)

The medical officer of health must send a copy of every agreement made under subsection (2) to the Director of Public Health.

122 Appeals to High Court

(1)

The medical officer of health and the individual in respect of whom an order has been made under this subpart (other than an urgent health risk order made under section 106) may each appeal to the High Court against the decision of the District Court.

(2)

The medical officer of health may appeal against the dismissal of an application under this subpart or against the District Court’s refusal to make an order, or impose a requirement, sought in the application.

(3)

The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.

(4)

On the ex parte application of the appellant, the Court appealed from may order that the appellant must not be required under section 74(1) of the District Courts Act 1947 to give the Registrar of the High Court security for costs.

(5)

Subsection (4) overrides subsection (3).

(6)

The decision of the High Court on an appeal to that Court under this section is final.

(7)

Subsection (6) is subject to section 123.

(8)

The medical officer of health must send a copy of every notice of appeal under this section to the Director of Public Health.

123 Appeals to Court of Appeal

(1)

A party to any appeal under section 122 may, with the leave of the Court of Appeal, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in that appeal.

(2)

On an appeal to the Court of Appeal under this section, the Court of Appeal has the same power to adjudicate on the proceedings as the High Court had.

(3)

The decision of the Court of Appeal on an appeal to that Court under this section, and on an application to it under this section for leave to appeal, is final.

124 Enforcement of order by medical officer of health

(1)

A medical officer of health may require an individual to comply with an order made under this subpart that is binding on the individual, and in doing so may be assisted by any number of assistants (who may consist of or include members of the police) and use any force that is reasonable in the circumstances.

(2)

However, in no case may force be used to require an individual to accept medical treatment.

(3)

The medical officer of health must promptly advise the Director of Public Health of any force used for the purpose of requiring an individual to comply with an order.

125 Offence not to comply with order

(1)

Every individual commits an offence who intentionally fails to comply with an order made under this subpart that is binding on the individual.

(2)

Every individual who commits an offence against this section is liable on summary conviction to a term of imprisonment not exceeding 6 months or to a fine not exceeding $50,000, or to both.

(3)

The Court, instead of sentencing a person who has been convicted of an offence against this section to imprisonment, may instead of or in addition to imposing a fine, make an order imposing whichever 1 or more of the requirements stated in section 114(1) that the Court thinks are necessary to prevent or minimise the health risk that the indicted poses.

(4)

An order made under subsection (3) has the same effect as a health risk order made under section 113, and this subpart applies to the order with any necessary modifications.

(5)

This section does not limit the power of the District Court to punish the failure to comply with an order made by a court as a contempt of Court.

Subpart 4—Offence to recklessly spread notifiable disease or other notifiable condition

126 Person must not recklessly spread notifiable disease or other notifiable condition

(1)

Every person who recklessly puts another person at risk of contracting a notifiable disease or other notifiable condition commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $50,000, or to both.

(2)

Every person who recklessly transmits a notifiable disease or other notifiable condition to another person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $100,000, or to both.

(3)

A person does not commit an offence against subsection (1) or (2) merely by refusing, or failing, to be vaccinated against the condition.

(4)

If a person is convicted of an offence against this section, the Court may, instead of sentencing the person to imprisonment, make an order imposing on the person whichever 1 or more of the requirements stated in section 114(1) that the Court thinks are necessary to prevent or minimise the health risk posed by the person.

(5)

An order made under subsection (4) may be made instead of, or in addition to, imposing a fine.

(6)

An order made under subsection (4) has effect as a health risk order made under section 113 and subpart 3 of this Part (apart from section 121) applies to the order with any necessary modifications.

127 Defences

(1)

It is a defence in a prosecution for an offence against section 126(1) that at the time that the defendant put the other person at risk of contracting the condition, the other person knew the defendant had the condition and voluntarily accepted the risk of contracting the condition.

(2)

It is a defence in a prosecution for an offence against section 126(2) that at the time that the condition was transmitted to the other person, the other person knew the defendant had the condition and voluntarily accepted the risk of contracting the condition.

Subpart 5—Residence orders in respect of persons in need of care

Jurisdiction of District Court

128 District Court may make residence order

The District Court may, on the application of a medical officer of health, order a person to reside in a specified place or places and to be supervised or cared for by a specified person or organisation if the Court is satisfied that—

(a)

the person is unable to care for himself or herself; and

(b)

as a result of that lack of care—

(i)

the health of the person is, or is likely to be, adversely affected; or

(ii)

the health of other persons is, or is likely to be, adversely affected; and

(c)

without the order, the person will not receive adequate care.

Application for residence order

129 Application for residence order

(1)

An application for a residence order may be made only by a medical officer of health.

(2)

The medical officer of health may not apply for a residence order unless satisfied that the conditions for making the order are met.

(3)

The application must be supported by an affidavit sworn by at least 1 medical practitioner that states the reasons for making the order sought.

(4)

The medical officer of health must send a copy of the application to the Director of Public Health.

130 Help Action under other enactment

(1)

This section applies if—

(a)

a medical officer of health could apply for a residence order in respect of a person; but

(b)

help could be provided to action could be taken in respect of the person under another enactment.

(2)

The medical officer of health may apply for a residence order in respect of the person only if, in the opinion of the medical officer of health, the help provided action that could be taken under the other enactment would be less effective or less appropriate to the circumstances of the person.

131 Prior consultation by medical officer of health

(1)

If a medical officer of health is considering applying to the Court for a residence order in respect of a person, the medical officer of health must, whenever practicable, consult with the person and may, at the person’s discretion after consulting with the person, consult with his or her family or whānau.

(2)

The purpose of consultation under subsection (1) is to enable the medical officer of health to ascertain whether the need for a residence order can be avoided by voluntary compliance by the person and, if relevant, any assistance on the part of the family or whanau.

132 Case conferences

The consultation under section 131 may, at the discretion of the medical officer of health, take the form of a case conference, which may be conducted by telephone or video link.

Duration, further applications, and appeals

133 Duration of residence order

(1)

A residence order lasts for the period stated in the order, which may not exceed 6 months.

(2)

If no period is stated in the order, the order lasts for 6 months.

134 Residence order may be extended

(1)

The Court may at any time, on the application of a medical officer of health, extend a residence order for a period of not more than 6 months if the Court—

(a)

is satisfied that a the Court has jurisdiction to make a new order of the same kind in respect of the person affected by the order; and

(b)

considers it is desirable to do so.

(2)

The medical officer of health must send a copy of the application to the Director of Public Health.

135 Court may cancel or vary residence order

(1)

The Court may, on the application of the medical officer of health or of the person affected by the order, cancel a residence order if the Court is satisfied that the order is no longer required.

(2)

The Court may, on the application of the medical officer of health or of the person affected by the order, vary the terms of a residence order if the Court considers it desirable in the circumstances.

136 Appeals

(1)

A medical officer of health and the person in respect of whom an order is made may each appeal to the High Court against a residence order or against the refusal to make such an order.

(2)

Sections 122 and 123, with all necessary modifications, apply to an appeal under subsection (1).

(3)

The medical officer of health must send a copy of every notice of appeal lodged under this section to the Director of Public Health.

Subpart 6—Contact tracing

Interpretation

137 Interpretation

(1)

In this subpart, unless the context otherwise requires,—

relevant officer has the same meaning as in section 140

required information means—

(a)

the name, age, sex, address, and telephone number of each contact of a person; and

(b)

information about the circumstances in which a condition to which this Part applies may have been communicated to, or by, the contact.

(2)

For the purposes of this subpart,

(a)

a person is the contact of another person if one of them may have communicated a condition to which this Part applies to the other; and

(b)

the contacts of an individual include persons who are

(i)

the contacts of the contacts of the individual; and

(ii)

the contacts of persons described in subparagraph (i).

(2)

For the purposes of this subpart, the contacts of a person who has a condition to which this Part applies (Person A) are as follows:

(a)

any one of a number of persons to whom person A has, or may have, directly or indirectly, communicated that condition:

(b)

any one of a number of persons who have, or may have, communicated that condition to person A.

Purpose of subpart

138 Purpose of subpart

The purpose of this subpart is to prevent or limit the spread of a condition to which this Part applies by obtaining information about that condition and identifying, testing, and treating those at risk.

Counselling contacts of individual with condition to which this Part applies

139 What contact tracing involves

For the purposes of this subpart, contact tracing in respect of an individual with a condition to which this Part applies involves—

(a)

ascertaining the identity of each of the individual’s contacts; and

(b)

talking to each contact, so far as this is practicable and appropriate; and

(c)

ascertaining the circumstances in which that condition may have been communicated to or by the contact; and

(d)

providing information and advice to the contact about the risks that the contact faces because of his or her exposure to the condition, including, where appropriate, advice about—

(i)

medical examinations for the condition; and

(ii)

the risk that the contact may have communicated the condition to others; and

(iii)

the risk that the contact may pose to others; and

(iv)

appropriate exclusion, treatment, and prophylaxis; and

(e)

obtaining information about the contacts of that contact, including the required information in relation to those other contacts.

140 Meaning of relevant officer

For the purposes of this subpart, in any case concerning the proposed or actual contact tracing in respect of an individual, the relevant officer is—

(a)

the medical officer of health if—

(i)

the identifying details of the individual have been notified under section 32(3)(b); or

(ii)

the fact that the individual has been charged with an offence against section 201 of the Crimes Act 1961 is reported to the medical officer of health; or

(iii)

the medical officer of health is requested under section 144(2) to carry out the contact tracing in respect of the individual:

(b)

the medical practitioner of the individual or a prescribed person, in any other case.

141 Appropriateness of contact tracing

(1)

The relevant officer may form the view that contact tracing in respect of an individual with a condition to which this Part applies should be undertaken if the relevant officer considers that the purpose of this subpart is likely to be achieved by doing so.

(2)

If the relevant officer is the medical officer of health, he or she may take into account any recommendation made by the medical practitioner of the individual.

142 Individual with condition to which this Part applies to provide certain information

(1)

If the relevant officer has, under section 141, formed the view that contact tracing in respect of an individual with a condition to which this Part applies should be undertaken, the relevant officer may direct the individual to give the relevant officer information about the circumstances in which the condition may have been communicated to, or by, the contact.

(2)

Before directing an individual under subsection (1), the relevant officer must inform the individual of the reasons for the direction.

(3)

The individual must comply with a direction given under subsection (1).

143 Consideration as to whether contact tracing can be undertaken by individual

(1)

When an individual has been given a direction under section 142, the relevant officer must consider whether it is appropriate for the individual to undertake the contact tracing, taking into account—

(a)

the seriousness of the health risk posed by the individual; and

(b)

the ability and willingness of the individual to undertake the contact tracing.

(2)

If the relevant officer considers that it would be appropriate for the individual to undertake the contact tracing, the relevant officer may must ask the individual to undertake the contact tracing, to the extent of the individual’s ability, and to report back to the relevant officer by a time specified by the relevant officer.

144 When relevant officer may undertake contact tracing

(1)

This subsection applies whenever an individual has been given a direction under section 142 and 1 of the following is the case:

(a)

the relevant officer does not consider that it would be possible or appropriate for the individual to undertake the contact tracing; or

(b)

the relevant officer has asked the individual to undertake the contact tracing, and the relevant officer is not satisfied that the contact tracing has been undertaken or that it has been undertaken adequately.

(2)

If subsection (1) applies,—

(a)

the relevant officer may undertake the contact tracing himself or herself or direct a delegate to do so; or

(b)

if the relevant officer is the medical practitioner of the individual concerned or a prescribed person, the medical practitioner or prescribed person may request the medical officer of health to undertake the contact tracing.

(2A)

The relevant officer must, wherever practicable, inform the individual of the course of action taken under subsection (2).

(3)

When a medical practitioner or a prescribed person makes a request under subsection (2), the medical practitioner or prescribed person must inform the medical officer of health of—

(a)

the identity of the individual in respect of whom the contact tracing is to be undertaken; and

(b)

the medical history of the condition of the individual; and

(c)

any attempts made to undertake the contact tracing and whether, and the extent to which, those attempts have been successful.

(4)

The medical officer of health may disclose any information obtained under subsection (3) only for the purposes of this subpart.

(5)

On receiving a request under subsection (2), the medical officer of health may undertake the contact tracing himself or herself or direct a delegate to do so.

145 Medical officer of health may direct certain persons to provide information

(1)

For the purpose of identifying the contacts of an individual who has been given a direction under section 142, a medical officer of health may approach the employer of the individual, any educational institution attended by the individual, or any business or other organisation that the individual has dealt with and direct that employer, institution, business, or other organisation to provide the medical officer of health with the names and addresses of the contacts of the individual that are known to the person whom the medical officer of health directs.

(2)

A person may must provide information in response to a request made under subsection (1) despite anything in the Privacy Act 1993.

146 Duty of confidentiality

A medical officer of health, a medical practitioner, or a delegate of those persons who approaches a contact under this subpart must not, so far as practicable, disclose to the contact the identity of the individual who may have communicated the condition to the contact or exposed the contact to the risk of contracting the condition.

147 Medical practitioner or medical officer of health may delegate powers, duties, and functions

(1)

The medical officer of health and every medical practitioner and prescribed person may each delegate any of their respective powers, duties, and functions under this subpart, except this power of delegation, to a person who is suitably qualified to exercise them.

(2)

The maker of the delegation must make the delegation in writing and sign it.

(3)

The maker of the delegation is not prevented from exercising, or affected in his or her exercise of, any of the delegated powers, duties, or functions.

(4)

The delegate may exercise the powers, duties, and functions in the same manner and with the same effect as if they had been conferred on the delegate directly by this Act.

(5)

Every person purporting to act under a delegation is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.

148 Status of delegations

(1)

A delegation made under section 147 continues in force according to its tenor until it is revoked.

(2)

A delegation made by a medical officer of health who has ceased to hold office continues to have effect as if made by the medical officer of health’s successor.

(3)

The maker of the delegation, or successor of the maker, may revoke the delegation at any time by written notice to the delegate.

149 Offence to fail to comply with direction to provide required information

(1)

Every person commits an offence who, having been directed under section 142 or 145 to give any required information, refuses to give the required information or intentionally omits any part of that information or gives any information that the person knows to be false.

(2)

A person who commits an offence against subsection (1) is liable on summary conviction to a fine not exceeding $10,000.

Subpart 7—Disclosure of communicable condition to partners and household members

150 Interpretation

In this subpart, close associate, in relation to a patient, includes—

(a)

a person with whom the patient lives in the same household; or

(b)

a person with whom the patient is having, or has had, contact of a sexual nature.

151 Medical practitioner or prescribed person may disclose certain matters to close associates

(1)

This section applies if a medical practitioner or a prescribed person believes on reasonable grounds that a person—

(a)

has a serious condition; and

(b)

exposes a close associate of the patient person to a significant risk of contracting the condition; and

(c)

has failed to inform the close associate.

(2)

The medical practitioner or prescribed person may give the close associate brief details about—

(a)

the likelihood of contracting the condition; and

(b)

the nature and source of the condition; and

(c)

ways of avoiding or managing the risk; and

(d)

the identity of the person with the serious condition if the medical practitioner or prescribed person considers disclosure necessary for the protection of the close associate.

(3)

The medical practitioner or prescribed person must inform the person with the serious condition of any action taken under subsection (2) in relation to the person.

152 Medical practitioner or prescribed person may consult with medical officer of health

(1)

Before a medical practitioner or a prescribed person takes the action permitted by section 151(2), the medical practitioner or prescribed person may consult with a medical officer of health about the proposed action.

(2)

In consulting with the medical officer of health under subsection (1), the medical practitioner or prescribed person may disclose to the medical officer of health the identity of the person, even though the medical practitioner is not otherwise required to do so.

Part 5 Public health role of territorial local authorities

Subpart 1Duties of local authorities and environmental health officersReporting

153 General powers and duties of territorial authorities in respect of public health

(1)

It is the duty of every territorial authority to improve, promote, and protect public health within its district so far as the powers and functions conferred on it by this Act enable it to do so, and for that purpose every territorial authority must

(a)

appoint, or arrange for another territorial authority to appoint, as many environmental health officers and other officers and employees as in its opinion are necessary for the proper discharge of its duties under this Act:

(b)

cause inspections of its district to be regularly made for the purpose of ascertaining whether any nuisances exist in the district:

(c)

if satisfied that a nuisance exists in the district, take all proper steps to stop the nuisance:

(d)

if premises present a risk to public health, take any remedial action required to prevent that risk (such as cleansing or disinfecting the premises):

(e)

perform, within its district, any functions conferred on it by any regulations and bylaws under this Act and to enforce those regulations and bylaws within the district:

(f)

where appropriate, make bylaws under and for the purposes of this Act or any other Act authorising the making of bylaws for the protection of public health.

(2)

Subsection (1) does not limit the Local Government Act 2002.

(3)

A territorial authority may delegate its powers and functions under this Act to any other territorial authority.

(4)

To avoid doubt, no delegation relieves the territorial authority of the liability or legal responsibility to perform, or ensure the performance of, any function or duty under this Act.

154 Regional Councils may be required to provide Director-General or DHB with reports

(1)

The Director-General or any medical officer of health employed by a DHB responsible for an area in the region of a Regional Council may, by written notice to the Regional Council, request the Regional Council to give the Director-General or the DHB a written report on any matter concerning the functions of the Regional Council that—

(a)

affects or may affect public health; and

(b)

arises in an area of that region specified in the notice (being, in the case of a medical officer of health employed by a DHB, an area for which the DHB is responsible).

(2)

Without limiting the generality of subsection (1), the public health matters on which a Regional Council may be requested to report on include the following:

(a)

the management of water sources in the specified area to be used as drinking water in the region and the sanitary state of those sources:

(b)

the air quality in the specified area of the region.

(3)

The Regional Council must give the report to the Director-General or to the chief executive of the DHB by the date stated in the notice under subsection (1).

155 Territorial authorities may be required to provide DHBs with reports

(1)

The Director-General or any medical officer of health may, by written notice to the territorial authority, request the territorial authority to give the Director-General or the DHB responsible for an area in the district of the territorial authority a written report on any matter within an area of that district that affects or may affect public health.

(2)

The territorial authority must give the report to the Director-General or the DHB by the date stated in the notice under subsection (1).

156 Provisions relating to reports

(1)

No report given under section 154 or 155 may contain information about an identifiable individual.

(2)

The local authority that gives a report under section 154 or 155 may recover from the Director-General or, as the case requires, the DHB any reasonable costs directly attributable to the preparation of the report.

(3)

The costs recoverable under subsection (2) do not include costs that are attributable to the performance of functions that the local authority is required to perform regardless of the preparation of the report.

(4)

Nothing in section 154 or 155 requires a local authority to collect information that it neither holds nor is required to hold to perform its functions.

157 Duty of territorial authority to have environmental health officers

(1)

For the purposes of this Part, every territorial authority must be able to access the services of a sufficient number of environmental health officers.

(2)

Every territorial authority is accountable to the Director-General for compliance with the duty imposed by subsection (1).

(3)

A territorial authority may comply with subsection (1), in whole or in part, by obtaining, under an arrangement with another territorial authority, the right to access the services of the environmental health officers of the other territorial authority.

(4)

The Director-General may, by direction in writing, require a territorial authority to appoint, or make arrangements for the appointment of, a minimum number of environmental health officers.

(5)

Before the Director-General issues a direction under subsection (4), the Director-General must consult with the territorial authority about the proposed direction.

(6)

If any territorial authority fails to appoint or to continue to employ the number of environmental health officers specified in any notice given under subsection (4), then

(a)

any health protection officer authorised by the Director-General may carry out the duties of an environmental health officer within the district of that territorial authority; and

(b)

the salary and other expenses of the health protection officer are payable by the territorial authority.

(7)

The salary and other expenses of the health protection officer authorised by the Director-General are payable by the territorial authority.

(8)

This section does not limit the power of the Director-General to give directions under section 8.

158 Provisions governing appointments

(1)

A territorial authority must not appoint a person as an environmental health officer unless satisfied

(a)

that the person is suitably qualified and trained; and

(b)

if any regulations governing the appointment of environmental health officers are in force, that the appointment complies with those regulations.

(2)

The territorial authority may do any or all of the following:

(a)

appoint persons to enforce all or specified provisions of this Part that the territorial authority is responsible for enforcing:

(b)

appoint persons to exercise all or specified powers given to environmental health officers by this Part:

(c)

appoint persons subject to limitations or restrictions on their exercise of powers.

(3)

The territorial authority must provide every person appointed as an environmental health officer with a warrant or other instrument of appointment that specifies the powers the officer may exercise.

159 Functions of environmental health officers

An environmental health officer has the following functions within the district of the territorial authority concerned:

(a)

to take action under this Part, under any bylaws, and under section 329 (which provides for the service of compliance orders) to

(i)

detect, prevent, stop, and prosecute nuisances; and

(ii)

assist any medical officer of health or health protection officer responsible within an area in the district, on request, to take such action:

(b)

to advise the relevant local authority on environmental health matters involved in the development of district and regional plans under the Resource Management Act 1991:

(c)

to advise the territorial authority on environmental health matters involved in plans and assessments developed under the Local Government Act 2002 and, in particular, on the water and sanitary services assessments prepared under that Act:

(d)

to provide general advice to the territorial authority on those of its activities that relate to public health.

Subpart 2—Provision of sanitary services

160 Sanitary services defined

(1)

For the purposes of this subpart, sanitary services means 1 or more of the following:

(a)

facilities to procure raw water and supply drinking-water:

(b)

works for the treatment, reticulation, or safe disposal of sewage:

(c)

the collection and disposal of human waste:

(d)

public toilets:

(e)

activities and facilities to manage storm-water:

(f)

activities and facilities to manage solid waste and other refuse:

(g)

mortuaries, cemeteries, and crematoria.

(h)

disinfecting stations.

(2)

Any facility, works, or structure referred to in subsection (1) includes—

(a)

the design, construction, commissioning, ongoing management, and maintenance of the facility, works, or structure; and

(b)

all lands, buildings, machinery, reservoirs, dams, tanks, and appliances used in connection with such facility, works, or structure.

161 Matters to be considered before directions given

(1)

Before deciding whether to give a direction under section 162, the Minister must consider—

(a)

whether the proposed direction is likely to address a risk to public health within the district of the territorial authority:

(b)

any evidence-based analysis of the nature and level of that risk:

(c)

the estimated costs and benefits arising out of the proposed direction:

(d)

whether there are any alternative courses of action that the territorial authority or the Minister could take to address the risk and, if so, the nature and likely effectiveness, costs, and benefits of those alternatives.

(2)

In considering the matters under subsection (1), the Minister must—

(a)

consult with the territorial authority and with any other interested persons that the Minister thinks appropriate; and

(b)

be guided by the interests of public health.

162 Minister may direct territorial authority about sanitary services

(1)

The Minister may, by written notice, direct a territorial authority to do any 1 or more of the following:

(a)

provide for, or amend existing provisions for, a particular type of sanitary service in the water and sanitary services assessment that the territorial authority undertakes under Part 7 of the Local Government Act 2002:

(b)

provide for, or amend existing provisions for, a stated type of sanitary work in the long-term community council plan that the territorial authority is preparing under the Local Government Act 2002:

(c)

provide for, or amend existing provisions for, a stated type of sanitary work in the long-term community council plan that the territorial authority has most recently approved under the Local Government Act 2002:

(d)

undertake a particular sanitary service in a manner that meets any standards or level of performance that the Minister may specify.

(1)

The Minister may, by written notice, direct a territorial authority to undertake a particular sanitary service in a manner that meets any standards or level of performance that the Minister may specify.

(2)

Any directions given under subsection (1) may include requirements concerning the nature and quality of the sanitary service or sanitary work concerned and the areas in which the service or work is to be available.

(3)

Any direction given may specify a time, not being less than 3 months after the direction is given, within which proposals for the carrying out of the service or work must be submitted to the Director-General, and may contain such general directions relating to the carrying out of the service or work, including a direction as to the amount of expenditure to be incurred, as the Director-General thinks fit.

(4)

The territorial authority must comply with all directions given within a reasonable time.

(5)

In the case of a direction under subsection (1)(d), the territorial authority must provide the Director-General

(a)

with a detailed schedule of proposed and completed applications for consents required, under the Resource Management Act 1991 or any other enactment, for the sanitary service; and

(b)

with reports on the design, construction, operation, and ongoing maintenance of the sanitary service.

(6)

Before the Minister directs a territorial authority under this section, the Minister must consult the territorial authority about the proposed direction and must, in particular, consult about the timeframe within which the territorial authority is to submit proposals for the planning and construction of the sanitary service, having regard to the territorial authority’s planning cycle and the interests of public health..

(7)

All directions given under this section must be in writing and must be published in the Gazette as soon as practicable after they are given.

162A Proposals for complying with direction under section 162

(1)

A territorial authority which is directed under section 162 must within the time specified in the direction submit to the Director-General proposals for the provision, alteration, or extension of the sanitary service concerned in accordance with the direction. The proposals must include plans and specifications of the works and all other particulars of the work to be carried out, and an estimate of its cost.

(2)

The Director-General may approve the proposals with or without modifications, which may include conditions subject to which the work is to be carried out, and the territorial authority must carry out the work in accordance with the proposals as approved.

(3)

If the territorial authority fails to submit proposals within the time specified in the direction, or if the Director-General does not approve the proposals, the Director-General may himself or herself make proposals, and any proposals so made by the Director-General have effect as if made and submitted by the territorial authority.

(4)

Before making or modifying any proposals the Director-General must send a draft of the proposals or modifications to the territorial authority and give the territorial authority an opportunity of making representations in relation to the draft. Notice of the Director-General’s final determination on the proposals must be served on the territorial authority.

(5)

Any expenses incurred by the Director-General in connection with any proposal may be recovered as a debt due from the territorial authority to the Crown or may be deducted from any money payable by the Crown to the territorial authority.

Compare: 1956 No 65 s 25 (6)(9), (11)

163 Grants and subsidies for refuse disposal works, sewerage works, and water supplies

(1)

For the purpose of contributing towards the cost of any of the activities specified in subsection (2), the Minister may make any payment (whether by way of grant, subsidy, loan, or otherwise) that the Minister thinks fit in a particular case to a territorial authority.

(2)

The activities are the investigation, planning, or construction of—

(a)

public water supplies:

(b)

refuse disposal works:

(c)

sewerage works:

(d)

works for the disposal of sewerage sewage.

(3)

Every payment under subsection (1) must be paid out of money appropriated by Parliament.

Compare: 1956 No 65 s 27A

164 Establishment of mortuaries and disinfecting stations

(1)

Any territorial authority may, either separately or jointly with any other territorial authority or territorial authorities,—

(a)

provide, equip, and maintain places for the reception of dead bodies pending the carrying out of any post-mortem examination or until removal for interment; and

(b)

provide facilities for carrying out in the mortuaries post-mortem examinations authorised under the Coroners Act 2006 or under any other enactment and for making good for burial dead bodies on which such post-mortem examinations have been carried out; and

(c)

provide, equip, and maintain disinfecting and cleansing stations, plant, equipment, and attendance for the cleansing of persons and for the disinfection of bedding, clothing, or other articles which have been exposed to or are believed to be contaminated with a communicable condition, or which are otherwise a public health risk; and

(d)

provide vehicles for the conveyance of infected articles and any other accommodation, equipment, or articles required for dealing with any epidemic or emergency; and

(e)

provide disinfectants for public use.

(2)

No Except in an emergency, no building may be used under this section as a mortuary or as a disinfecting or cleansing station unless the plans and specifications and the site of the building have been approved by the Director-General.

Compare: 1956 No 65 s 84

165 Duties of local territorial authorities as to burials

(1)

Where the body of any person who has died is a risk to public health, the medical officer of health may—

(a)

order the body to be buried immediately, or within a time limited in the order; and

(b)

if he or she thinks fit, order that the body, pending burial, be removed to the nearest mortuary.

(2)

If the order is not complied with, the local territorial authority must ensure that the body to be is buried immediately or is removed to a mortuary for the purpose of being buried.

(3)

Any order under this section may be complied with on behalf of and at the cost of the local territorial authority by any—

(a)

health protection officer; or

(b)

member of the police; or

(c)

any person authorised for that purpose by the medical officer of health or health protection office.

(4)

If the body is removed to the mortuary, the local territorial authority must ensure that it is buried.

(5)

The expenses of the removal and burial of the body by the local territorial authority may be recovered from any person legally liable to pay the expenses of the burial, as a debt due to the local territorial authority.

(6)

Every person commits an offence against this Act who in any way prevents or obstructs the due and prompt execution of any order under this section or of any of the powers exercisable under this section.

(7)

In this section, references to burial include references to cremation in any case where cremation may be lawfully carried out.

Compare: 1956 No 65 s 86

Subpart 3—Control of nuisances

166 Nature of nuisance

(1)

A nuisance is an activity or state of affairs that is, or is likely to be, injurious to public health.

(1)

A nuisance is an activity or state of affairs that

(a)

is, or is likely to be, injurious to health; or

(b)

is offensive to persons in the area in which the activity is carried out or the state of affairs exists.

(1A)

For the purposes of subsection (1)(b), an activity or state of affairs is not offensive unless reasonable persons in the area would regard it as unacceptable.

(2)

A nuisance may, without limitation, arise from or be constituted by any 1 or more of the following:

(a)

buildings or structures:

(b)

land, air, water, or land covered by water:

(c)

animals, insects, or birds:

(d)

refuse or accumulations of material:

(e)

noise or vibrations:

(f)

emissions or discharge.

(3)

In particular, a nuisance may arise from or be constituted by any 1 or more of the following:

(a)

human or animal waste, defective toilets, sewers, or drains:

(b)

locations that are, or are likely to become, breeding grounds for rats, mosquitoes, or other vectors and vermin:

(c)

dwellings that are overcrowded or otherwise insanitary:

(d)

dirt or odour:

(e)

animal carcasses:

(f)

composting.

(4)

In this section,—

(a)

neither subsection (2) nor (3) limits subsection (1); and

(b)

subsection (3) does not limit subsection (2).

167 Duties of territorial authority

(1)

A territorial authority must ensure that its district is regularly inspected to ascertain if any nuisances exist in its district.

(2)

If satisfied that a nuisance exists in its district, the territorial authority must take all proper steps to stop the nuisance.

168 Inspections to ascertain existence of nuisance

(1)

For the purpose of ascertaining whether any nuisance exists in any place, an environmental health officer may enter any land or premises at any reasonable time and inspect that land or those premises.

(2)

When entering land or premises under this section, an environmental health officer may—

(a)

take on to the land or into the premises any appliances, machinery, and equipment reasonably necessary for ascertaining whether any nuisance exists; and

(b)

for the purpose of ascertaining whether any nuisance exists, take samples using any equipment mentioned in paragraph (a). and to take photographs or sound or video recordings of the land or premises; and

(c)

be accompanied by any person authorised by the environmental health officer to assist him or her in the inspection.

(2A)

Subsection (2) does not limit section 353.

(3)

This section is subject to section 327 and to sections 352 to 358 (general provisions relating to entry and search powers).

169 Offence to cause or permit nuisance

(1)

Every person who, without lawful justification or excuse, does anything in the knowledge that it causes or continues a nuisance commits an offence.

(2)

A person who has been convicted of an offence under this section commits a further offence or offences if the person, being lawfully able to stop the nuisance, fails or neglects, or continues to fail or neglect, to do so.

(3)

A person who commits any offence against this section is liable on summary conviction to a fine not exceeding $10,000.

170 Provisions of this subpart do not limit other rights

(1)

This subpart does not limit any right, remedy, or proceeding under any other enactment or at law or in equity.

(2)

To avoid doubt, subsection (1) does not authorise the punishment of a person for the same offence both under this subpart and under any other enactment or bylaw.

171 Rectification orders

(1)

The District Court, if satisfied that a nuisance exists or that a nuisance that has been stopped is likely to recur may, on application by any person, make a rectification order.

(2)

A rectification order may do either or both of the following:

(a)

require the owner and the occupier to stop the nuisance:

(b)

prohibit the recurrence of the nuisance.

(3)

The District Court may specify in the rectification order the work to be done in order to stop the nuisance or prevent its recurrence, and the time within which the work must be done.

172 Buildings or dwellinghouses unfit for human occupation

(1)

If, on making a rectification order in respect of a nuisance, the Court is of the opinion that the nuisance makes a dwellinghouse or other building unfit for human occupation, the Court may, by the same or any subsequent order, prohibit the use of the dwellinghouse or building for that purpose until the nuisance has been effectively stopped to its satisfaction, or until provision has been made to its satisfaction to prevent the recurrence of the nuisance.

(2)

The Court may rescind the order when it is satisfied that the nuisance has been effectively stopped, or, as the case may be, that due provision has been made to prevent its recurrence.

173 Effect of order under section 172

Until an order under section 172 is rescinded, it is not lawful to let or occupy the dwelling or building to which the order relates.

174 District Court Judge may view place and summon owner or occupier

In any proceedings for a rectification order, the District Court Judge may do 1 or more of the following:

(a)

examine the place where the nuisance is alleged to exist:

(b)

authorise any other person to do so and report to the Judge:

(c)

direct that another owner or occupier of a place be joined as a party to the proceedings.

175 Breach of order is offence

(1)

Every person who is bound by a rectification order commits an offence who, without reasonable excuse, fails to duly comply with that rectification order.

(2)

Every person commits an offence who does anything in the knowledge that it contravenes a rectification order.

(3)

A person who commits an offence against this section is liable on summary conviction to a fine not exceeding $50,000.

(4)

This section does not limit the power of a District Court to punish any non-compliance or contravention as a contempt of Court.

176 On default of owner, territorial authority must carry out work

(1)

If the owner or occupier of land or premises in which a nuisance exists fails to do the work necessary to stop the nuisance effectively, or to prevent its recurrence, the territorial authority must do that work, or arrange for it to be done, at the expense of the owner and the occupier, who are jointly and severally liable for the cost of the work.

(2)

If there is no known owner or occupier of the land or premises in which the nuisance exists, or if the owner or occupier cannot be found, the Court may by order direct that the nuisance be stopped by the territorial authority at the expense of the territorial authority.

177 Power to stop nuisance without notice

(1)

If an environmental health officer of a territorial authority believes on reasonable grounds that a nuisance on any land or premises within the district of the territorial authority poses a significant risk to public health in the area, the environmental health officer may—

(a)

enter that land or premises; and

(b)

stop the nuisance.

(1A)

Without limiting section 353, the environmental health officer may be accompanied by any person authorised by the environmental health officer to assist him or her in stopping the nuisance.

(2)

Despite subsection (1), no environmental health officer may enter any land or building that is a defence area (within the meaning of section 2(1) of the Defence Act 1990) except in accordance with a written agreement between the Director-General and the Chief of Defence Force entered into for the purposes of this section and for the time being in force.

(3)

In stopping any nuisance, the environmental health officer must avoid, to the greatest extent practicable, the destruction of, or any irreversible change to, any premises.

(4)

Despite subsection (3), the environmental health officer may destroy 1 or more articles on the land if the environmental health officer believes on reasonable grounds that the destruction is necessary to eliminate or mitigate the risk to public health posed by the nuisance.

(5)

As soon as practicable after stopping, or attempting to stop, a nuisance under this section, the environmental health officer must apply for a rectification order under section 171.

(6)

No notice is required to exercise the powers under this section.

(7)

The owner and any occupier of the land or premises are jointly and severally liable for any costs incurred by the territorial authority in stopping the nuisance.

(8)

This section is not subject to section 327 but is (other than subsection (5) (6)) is subject to sections 352 to 358 (general provisions about entry and search powers).

178 Interim closure of dwellinghouse posing serious risk to public health

(1)

If the insanitary condition of a dwellinghouse constitutes a nuisance that poses a significant risk to the health of the occupants of the dwellinghouse, the environmental health officer may serve notice of a prohibition on the occupier of the dwellinghouse prohibiting the use of the dwellinghouse for human occupation while occupants are subject to that risk.

(2)

A prohibition under subsection (1) takes effect 24 hours after notice of the prohibition is served.

(3)

When the environmental health officer applies for a rectification order, as required by section 177(4)(5), the District Court may—

(a)

quash the prohibition; or

(b)

for the time that the application is heard and determined, confirm or vary the prohibition.

(4)

A dwellinghouse is insanitary for the purposes of this section if

(a)

the occupants of the dwellinghouse do not have an adequate supply of potable water; or

(b)

the occupants of the dwellinghouse do not have access to adequate ablution and sanitary facilities; or

(c)

the dwellinghouse is infested by vermin; or

(d)

the occupants are surrounded by animal or human waste or refuse; or

(e)

the dwellinghouse harbours biological, chemical, or radiological hazards; or

(f)

the dwellinghouse is, by reason of its situation or condition, likely to cause injury to the health of the occupants of the dwellinghouse.

179 Nuisance caused by act or default outside district

For the purposes of this subpart, a location outside the district of a territorial authority is taken to be wholly inside that district if a nuisance existing within the district is wholly or partly caused by some act or default in that location.

(1)

If a nuisance existing within the district of a territorial authority (Authority A) has its origins in a location that is part of the district of another territorial authority (Authority B), Authority A and any environmental health officer employed by Authority A may take any action under this subpart in respect of that location as if it were part of the district of Authority A.

(2)

Before Authority A or any environmental health officer employed by Authority A takes any action under subsection (1), Authority A must notify Authority B about the proposed action.

(3)

Subsection (2) does not apply if the need for action is urgent.

180 Recovery of expenses and costs of territorial authority

(1)

All expenses incurred by or on behalf of a territorial authority in stopping a nuisance or in preventing its recurrence, together with reasonable costs in respect of the services of the territorial authority, are—

(a)

recoverable from the owner or the occupier of the land or premises in respect of which they are incurred as a debt due to the territorial authority; and

(b)

until paid, a charge on that land, which may be registered against that land in accordance with the Statutory Land Charges Registration Act 1928.

(2)

All materials, refuse, and things removed in doing any work done, or arranged by, the territorial authority in stopping a nuisance or in preventing its recurrence, must be sold, destroyed, or otherwise disposed of as the territorial authority thinks fit.

(3)

The territorial authority is entitled to the proceeds of a sale or other disposal under subsection (2).

Medical officer of health may step in if territorial authority’s response unsatisfactory

181 Inadequate response to nuisance representing significant health risk

(1)

This section applies if a medical officer of health who is responsible for an area in the district of a territorial authority believes on reasonable grounds that—

(a)

a nuisance exists in the area; and

(b)

the nuisance presents a significant risk to health; and

(c)

the territorial authority has not taken adequate action to investigate the nuisance or take actions under this subpart that are appropriate in the circumstances.

(2)

The medical officer of health may direct the territorial authority—

(a)

to take any action under this subpart in respect of the nuisance:

(b)

to take any action to prevent or remedy risks to public health emanating from the nuisance.

(3)

The directions must be in writing.

(4)

The territorial authority must comply with the directions and must do so at the cost of the territorial authority.

(5)

Before the medical officer of health issues directions under this section, the medical officer of health must consult with the territorial authority about the proposed directions.

182 Medical officer of health may take enforcement action

(1)

Subsection (2) applies if the territorial authority fails to comply with a direction given under section 181.

(2)

The medical officer of health may take any action under this subpart in respect of the nuisance that the territorial authority could have taken.

(3)

Sections 166 to 180 apply, with any necessary modifications, to any action taken by a medical officer of health under this section as if a reference in any of those sections to—

(a)

the territorial authority were a reference to the medical officer of health; and

(b)

a reference to an environmental health officer were a reference to a medical officer of health or health protection officer.

(4)

The territorial authority is liable for all costs incurred by the medical officer of health under this section.

Permitted Authorised activities

183 Determinations permitting activities not affected

(1)

No action taken or direction made under this subpart in respect of an activity affects any determination under an enactment (including a resource consent granted under the Resource Management Act 1991) by which the activity (a permitted activity) is permitted.

(2)

The provisions of this subpart apply to a permitted activity that wholly or partly constitutes a nuisance.

(3)

Despite subsection (2), no action or determination under this subpart may stop a permitted activity, but any such action or determination may mitigate any health risks or nuisance posed by the activity.

(4)

However, the activity may be stopped if the health risks posed by the activity were not foreseen at the time that the activity became a permitted activity.

(5)

Subsection (4) overrides subsection (3).

183 Authorised activities

(1)

In this section, authorised activity means an activity that is specifically authorised by a determination made under an enactment.

(2)

If the nature and extent of any risks to public health posed by an authorised activity were taken into account by the council, court, body, or person in making the determination that authorised the activity, then

(a)

the authorised activity may not be stopped under this subpart; but

(b)

the risks may be mitigated under this subpart.

(3)

Except as provided in subsection (2), this subpart applies to authorised activities.

Subpart 4Power to make bylawsBylaws

184 Public health bylaw defined

A public health bylaw is a bylaw made under this Act or under the Local Government Act 2002 or under any other enactment for any of the purposes specified in section 186(1).

185 Consultation required before territorial authority makes public health bylaw

Before a territorial authority makes a public health bylaw, the territorial authority must consult about the proposed bylaw with the DHB responsible for the area in the district of the territorial authority.

186 Bylaws

(1)

Bylaws may provide for all or any of the following purposes:

(a)

improving, promoting, or protecting public health, and preventing or stopping nuisances:

(b)

the maintenance and operation, in a safe and efficient manner, of particular sanitary services or classes of sanitary services, whether owned or managed by the territorial authority or by any other person:

(c)

the prevention of harm from particular sanitary services or classes of sanitary services, whether owned or managed by the territorial authority or by any other person:

(d)

prescribing the minimum area of land on which a dwellinghouse may be erected in the district of the territorial authority or any specified part of the district:

(e)

preventing the overcrowding of land with buildings and, in particular, prescribing the minimum air space adjacent to any dwellinghouse or any specified class of dwellinghouse that must be kept free of buildings or other structures:

(f)

prescribing minimum frontages for buildings in relation to roads:

(g)

regulating drainage and the collection and disposal of sewage, and prescribing conditions to be observed in the construction of approved drains:

(h)

requiring the cleansing of buildings and the paving and sanitation of yards and other areas connected with buildings:

(i)

regulating, licensing, or prohibiting the keeping of any animals in the district or in any part of the district:

(j)

making provision for the proper cleansing, ventilation, sanitation (including the provision of public toilets), and disinfection of theatres, halls, and churches, and public meeting places, and requiring those buildings and places to be closed for admission to the public at any intervals and during any periods specified to enable that cleansing, ventilation, and disinfection to be effectively undertaken:

(k)

regulating and prescribing the cleansing and renovation of public conveyances:

(l)

prescribing the sanitary precautions to be adopted in respect of any business, trade, or trade waste:

(m)

preventing the outbreak or spread of disease by the agency of rats, mosquitoes, or other vectors:

(n)

protecting food for human consumption and any water supply from pollution:

(o)

regulating the emission of smoke from the funnels of ships, and from chimneys other than chimneys of private dwellinghouses:

(p)

providing for the inspection of any land or premises for the purposes of this Act:

(q)

generally, providing for matters that are necessary for the administration, or for giving full effect to, the provisions of this Act relating to the powers and duties of territorial authorities.

(2)

The powers conferred by this section are in addition to the powers conferred on a territorial authority by any other Act.

(3)

This Part does not prevent a territorial authority from making bylaws that provide for greater protection of public health and greater protection from nuisances than this Part provides.

(4)

To avoid doubt, no bylaws made under this section or under the Local Government Act 2002 may permit a lower standard of public health protection than that required by this Act.

187 Application of other enactments to bylaws

Subpart 1 of Part 8 of the Local Government Act 2002, sections 162, 239, and 242 of that Act, and the Bylaws Act 1910 apply, with any necessary modifications, to bylaws made under section 186.

188 Local Government Act 2002 amended

(1)

This section amends the Local Government Act 2002.

(2)

The following section is inserted after section 152:

152A Effect of Public Health Act 2007 on bylaws made under this ActPublic health bylaws

(1)

Before a territorial authority makes a public health bylaw, the territorial authority must consult about the proposed bylaw with the district health board responsible for the area in the district of the territorial authority.

(2)

A council territorial authority may make bylaws in respect of public health and safety under section 145(b) that provide protection in respect of circumstances and situations that are not expressly provided for by or under the Public Health Act 2007.

(3)

In this section, public health bylaw means a bylaw for the purpose of protecting, promoting, or maintaining public health or protecting the public from nuisance.

Subpart 5—Reviews of territorial authorities and intervention by Minister

189 Review of territorial authorities

(1)

The Director-General may, on his or her own initiative or at the request of the Minister, review whether a territorial authority is properly exercising or performing its powers, functions, or duties under this Part.

(2)

The Director-General must—

(a)

give the territorial authority a reasonable opportunity to make written submissions on the review; and

(b)

consider those submissions (if any).

(3)

The Director-General must, after completing the review, report to the Minister if he or she believes that the territorial authority is not properly exercising or performing its powers, functions, or duties under this Part.

190 Non-performance by territorial authority

(1)

This section applies if, after considering a report under section 189 on a territorial authority and any submissions by the territorial authority on the report, the Minister considers that the territorial authority is not properly performing its functions or duties, or exercising its powers, under this Part.

(2)

The Minister may, in consultation with the Minister of Local Government, appoint 1 or more persons to act in place of the territorial authority by performing all or any of the territorial authority’s powers, functions or duties under this Part.

191 Order for mandamus

The Minister may apply to the High Court for an order for mandamus to compel a territorial authority to perform any duty that the territorial authority has failed to perform under this Part.

Subpart 6—Relationship of this Part with certain other enactments

192 Action under certain other enactments to be preferred

(1)

This section applies if any activity takes place or a state of affairs exists in a district of a territorial authority in respect of which the territorial authority may take action either—

(a)

under this Part; or

(b)

under 1 or more of the following Acts:

(i)

the Building Act 2004:

(ii)

the Hazardous Substances and New Organisms Act 1996:

(iii)

the Local Government Act 2002:

(iv)

the Resource Management Act 1991.

(2)

The territorial authority may take action under this Part only if the territorial authority forms the view that—

(a)

the activity or state of affairs is a risk to public health; and

(b)

any action under any of the Acts mentioned in subsection (1)(b) would be less appropriate in the circumstances of the case.

193 Bylaws under this Part prevail over other bylaws

If there is an inconsistency between a bylaw made by a territorial authority under this Part and a bylaw made by the territorial authority under another enactment, the bylaw made under this Part prevails to the extent of the inconsistency.

Part 6 Regulated activities

Subpart 1—Objective of this Part and regulations of activities posing risk to public health

194 Objective

(1)

The objective of this Part is to enable the imposition of 1 or more controls on regulated activities in order to prevent, reduce, or eliminate the risks to public health associated with those activities.

(2)

Any restrictions imposed under this Part should, wherever practicable, be proportionate to those risks.

194AA This Part does not apply merely because of continuation of existing regulations

An activity is not taken to be a regulated activity merely because the activity is regulated by regulations that, by section 380, are to be treated as having been made under this Act.

194AA Expiry of section 194AA

Section 194AA expires with the close of 1 July 2012 and on the close of that date is repealed.

194A Minister may recommend making of regulations

(1)

The Minister may recommend to the Governor-General that regulations be made under this Part in respect of an activity that poses a risk to public health.

(2)

In deciding whether to recommend that regulations be made in respect of an activity, the Minister must consider

(a)

whether the activity poses a risk to public health and, if so, the nature and magnitude of the risk:

(b)

if the risk to public health is constituted by potential harm, the likelihood of that harm occurring:

(c)

whether the risk of that harm is likely to be prevented, mitigated, or adequately managed by regulations:

(d)

whether the activity is already regulated under another enactment.

(3)

Before the Minister recommends that regulations be made in respect of an activity, the Minister must be satisfied that.

(a)

the activity poses a risk to public health; and

(b)

it is appropriate that persons carrying on the activity be required to have 1 or more of the following:

(i)

a current consent:

(ii)

an approved public health risk management plan:

(iii)

a periodic assessment of the activity.

(4)

In considering the substance of any recommendation in respect of an activity, the Minister must consider the nature of the activity, the seriousness of the risk posed by the activity, and the degree to which proposed requirements to be specified in regulations are proportionate to the risk posed by the activity.

(5)

Before the Minister makes a recommendation under this section, the Minister must consult any persons likely to be affected by the recommendation, including, without limitation, representatives of local government and Maori interests, that the Minister considers appropriate.

194B Regulations in respect of activities

The Governor-General may, by Order in Council, on the recommendation of the Minister made under section 194A, make regulations in respect of any activity described in the regulations for all or any of the following purposes:

(a)

prescribing requirements, standards, criteria, mandatory objectives, functional requirements, performance measures, or objectives that must be observed or at- tained in carrying on the activity:

(b)

prescribing specifications or criteria for any place or premises in which the activity is carried on or for any equipment used in carrying on the activity:

(c)

providing that the activity may not be carried on in a district without a current consent of a consent authority in the district and prescribing a maximum period of not more than 36 months up to which such a consent, or any renewal of any consent, may, in accordance with the determination of the consent authority, be in force:

(d)

providing for the kinds of conditions subject to which any consent, or a consent of a particular kind, may be issued:

(e)

providing that, instead of or in addition to the requirement for a consent authorised by paragraph (c), the activity may not be carried on in any district without a current public health risk management plan that has been approved by an assessor or by the consent authority in that district and prescribing the form of such a public health risk management plan:

(f)

determining whether the activity may be carried on in any district only if the compliance in the district of the activity with this Part, the regulations, any conditions on any consent, or any public health risk management plan is periodically assessed by an assessor and prescribing the nature of such assessments and the intervals at which they must be made:

(g)

prescribing the form and content of certificates issued by assessors under section 199(2):

(h)

determining whether the relevant consent authorities for the activity are to be DHBs or territorial authorities or authorising the Director-General to determine, in respect of the activity, whether the relevant consent authority for any area is to be the DHB or the territorial authority that is responsible for that area:

(i)

prescribing the matters that must be contained in an application for a consent or in an application for a renewal of a consent:

(j)

prescribing the kinds and forms of records that persons carrying on the activity must keep and the particulars that must be recorded in those records:

(k)

requiring any person carrying on the activity to be accredited by a professional or occupational body recognised by the Director-General, and requiring compliance with the applicable rules or codes of practice issued or adopted by that body:

(l)

prescribing any particulars to be entered on a record under this Part:

(m)

prescribing the periods for which, and the ways in which, records that consent authorities receive and make under this Part must be held by those authorities, and prescribing the manner in which any such records required to be sent to the Director of Public Health are to be sent:

(n)

fixing charges payable in respect of any function performed under this Part by a consent authority that is a DHB, or by a reviewer who is appointed by any such consent authority, or by an assessor who is appointed by the Director-General or authorising any such charges to be determined by such a consent authority by reference to scales of charges or other formulae fixed by the regulations.

194C Incorporation by reference

(1)

Any regulations made under section 194B may incorporate material by reference.

(2)

Sections 337 to 344 (the standard provisions about incorporation by reference) apply.

Subpart 2—Duties of operators of activities

195 Duty to comply with this Part

(1)

Every person who carries out a regulated activity must comply with this Act, the applicable regulations, any conditions on the consent (if any) granted for the activity, and the requirements of any public health risk management plan approved for the activity.

(2)

Every person who, without reasonable excuse, contravenes subsection (1) commits an offence punishable on summary conviction by a fine not exceeding $200,000.

(3)

If the person convicted under subsection (1) holds a consent to carry out the risk activity, the Court may, in addition to, or instead of, imposing a fine, cancel the person’s consent.

196 Taking of all practicable steps to prevent risks to public health

(1)

Every person responsible for carrying on a regulated activity must, in respect of circumstances that the person knows about or ought reasonably to know about, identify all reasonably identifiable risks to public health that may arise from the activity and must take all practicable steps to prevent those risks.

(2)

In subsection (1), all practicable steps, in relation to the achievement of any particular result, means all steps to achieve that result that it is reasonably practicable to take in the circumstances, having regard to—

(a)

the nature and severity of the harm that may be suffered if the result is not achieved; and

(b)

the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and

(c)

the current state of knowledge about harm of that nature; and

(d)

the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and

(e)

the availability and cost of each of those means.

(3)

Every person who contravenes subsection (1) commits an offence punishable on summary conviction by a fine not exceeding $200,000.

(4)

It is a defence to a prosecution under subsection (3) that the defendant defendant’s conduct on which the prosecution is based complied with this Part (other than this section), the applicable regulations, any conditions on any consent granted for the activity to which the alleged offence relates, and the requirements of any public health risk management plan approved for the activity.

197 Consent holder must advise relevant consent authority of important changes

(1)

A consent holder must advise the relevant consent authority of any important change in the consent holder’s circumstances not later than 14 days after the change occurs.

(2)

For the purposes of subsection (1), an important change is one that relates to any matter about which information is sought in, or in connection with, an application for a consent or an application for a renewal of a consent, or the occurrence of an event, action, or failure that disqualifies the consent holder from holding a consent, or a change of a kind specified by regulations.

(3)

Every person who contravenes subsection (1) commits an offence punishable on summary conviction by a fine not exceeding $10,000.

198 Persons carrying on regulated activities must assist assessors and designated officers in exercise of powers

(1)

A person carrying on a regulated activity must, on request, provide an assessor or a designated officer with any reasonable assistance that the person is able to provide if that assistance is necessary for the lawful exercise of a power conferred on the assessor or officer in respect of the risk activity.

(2)

Every person who contravenes subsection (1) commits an offence punishable on summary conviction by a fine not exceeding $10,000.

(3)

In this section, designated officer means a medical officer of health, a health protection officer, or an environmental health officer designated by a consent authority for the purpose of enforcing this Part.

(4)

This section does not require a person to give any answer or information tending to incriminate that person.

199 Periodic compliance assessments of operators of activities

(1)

If required by regulations, every person who carries out a regulated activity must arrange with an assessor to assess, at the intervals shown on the consent of the person or specified by regulations, the compliance of the operation of the regulated activity with this Act, the applicable regulations, any conditions imposed on the consent, any public health risk management plan, and any applicable rules or code of practice.

(2)

If the assessor, following an assessment under subsection (1), is satisfied that the operation of the regulated activity complies with the Act, the applicable regulations, any conditions imposed on the consent, any public health risk management plan, and any applicable rules or code of practice, the assessor must issue to the consent holder a certificate to that effect.

(3)

The assessor must send a copy of the certificate to the relevant consent authority.

(4)

If, following an assessment, the assessor forms the opinion that the operation of the regulated activity fails to comply in any respect, the assessor must report that opinion and the reasons for it to the consent holder and to the relevant consent authority.

Subpart 3—Applications for, and granting of, consents

200 Application of subpart

This subpart applies to regulated activities specified by the regulations as requiring for which a consent is required by regulations made under this Part.

201 Person proposing to carry on regulated activity must apply to relevant consent authority

(1)

A person proposing to carry on a regulated activity must apply to the relevant consent authority for a consent in a form provided by the consent authority.

(2)

The form must require the person completing the form to give the following information:

(a)

the name and contact details of the applicant:

(ab)

in the case of an individual, the individual’s date of birth:

(b)

in the case of a body corporate or partnership, the name and contact details of every director or partner:

(c)

the activities for which the consent is sought:

(d)

the description, address, and, if required for the purposes of identification, a plan of the location or locations to be used for the activities for which the consent is sought:

(e)

an address for service of the applicant:

(f)

the systems to be adopted and applied in satisfying the requirements of this Part, the applicable regulations, and any required public health risk management plan:

(g)

any other information to enable the consent authority to assess whether the applicant is eligible to hold the consent sought.

(3)

The application must be signed and dated by or on behalf of the applicant.

202 Application to be accompanied by payment and public health risk management plan, if required

(1)

Every application must be accompanied by the payment of any administrative charge fixed under section 210 and, if required by any regulations, by a duly completed and approved public health risk management plan.

(2)

The consent authority may refuse to consider an application or grant a consent until the appropriate charge has been paid.

203 Consent authority to obtain report and respond to application within 20 working days

(1)

On receipt of an application, the consent authority must obtain a report on the application from an environmental health officer (if the consent authority is a territorial authority) or a medical officer of health or health protection officer (if the consent authority is a DHB).

(2)

A report under subsection (1) must state whether the application complies with this Part, any applicable regulations, and whether the public health risk management plan (if required) has been duly completed and approved.

(3)

Within 20 working days after receipt of an application for consent, the consent authority must—

(a)

grant the application under section 204; or

(b)

grant a provisional consent under section 205; or

(c)

advise the applicant, in accordance with section 206(1), that the application does not comply or that the authority requires further information.

204 Grant of application

(1)

A consent authority may grant an application for a consent if the consent authority—

(a)

has obtained a report under section 203 about the application; and

(b)

is satisfied that the application complies with this Part, any applicable regulations, and that any public health risk management plan has been duly completed and approved.

(2)

If the consent authority grants an application for consent, the authority must issue the consent to the applicant.

(3)

The consent authority may issue the consent without conditions or subject to any conditions that comply with any relevant regulations made under section 194B and that, in the opinion of the consent authority, are necessary to minimise any risks from the activity to public health.

(4)

A consent must state the following:

(a)

the nature of the activity:

(b)

the name of the consent holder:

(c)

the period of the consent:

(d)

the premises in which or from which the activity is carried on:

(e)

any conditions that attach to the consent:

(f)

the intervals at which the compliance of the activity with this Part, any applicable regulations, and the consent must be assessed and certified in accordance with this Act and the regulations.

(5)

Every consent holder must ensure that a copy of the consent is prominently displayed so as to be readily visible to the public at every place of business where the activity concerned is carried on.

205 Provisional consent may be granted

(1)

The consent authority may grant a provisional consent for a period not exceeding 6 months.

(2)

The consent authority may make—

(a)

the provisional consent subject to any conditions that may be imposed under any relevant regulations made under section 194B and that, in the opinion of the consent authority, are necessary to minimise any risks from the activity to public health; and

(b)

make the grant of a further consent dependent on the supply of further information or on the performance and compliance of the consent holder in carrying out the activity under the provisional licence.

(3)

The consent authority may grant only 1 provisional consent in respect of any application.

206 Advice about non-compliance and requests for further information

(1)

If the application does not comply with the requirements set out in, or provided under, this Part or if further information is required to enable the authority to consider the application, the consent authority must advise the applicant in writing on any of the following matters:

(a)

why the application fails to comply and whether or not it can be brought into compliance:

(b)

if the application fails to comply, the steps required to bring it into compliance:

(c)

any further information that the authority requires for its consideration of the application.

(2)

The consent authority may require that any further information submitted with or in relation to the application be verified by statutory declaration.

(3)

If the application is not brought into compliance, or the further information is not supplied, within 6 months of the date of the advice given under subsection (1), or within such further time as the consent authority allows, the application lapses.

(4)

If the consent authority states under subsection (1)(a) that the application cannot be brought into compliance, the application is refused and this must be stated in the advice.

(5)

If the consent authority is satisfied that, in view of the steps taken by the applicant or any further information provided, the application should be granted, the authority must grant the application in accordance with section 204 and must advise the applicant within 10 working days of making that decision.

207 Renewal of consent

(1)

If an application for renewal of a consent is made 3 months before the expiry of the consent, the consent continues in force until the application for renewal is determined.

(2)

This Part and any applicable regulations apply to an application for a renewal of a consent as if it were an application for a new consent.

(3)

An applicant for renewal of a consent must submit with the application a memorandum, signed by the applicant, that states—

(a)

whether it is the case that, since the consent was last granted, any new risks or other relevant issues have become apparent, including, without limitation, any inadequacies in any public health risk management plan or in other conditions on the consent; and

(b)

if that is the case, the nature of those risks, issues, or inadequacies and how the applicant is addressing, or proposes to address, those risks, issues, or inadequacies.

(4)

Subsection (2) is subject to any applicable regulations that provide for applications for renewals of consents.

208 Amendments to public health risk management plan may be required on renewal

(1)

On an application for the renewal of a consent, the consent authority may require, as a condition for granting the renewal, that amendments be made to any public health risk management plan—

(a)

to rectify any deficiencies in the plan that have become apparent since its approval; or

(b)

to respond to changes of the kind described in subsection (2).

(2)

The kinds of changes are—

(a)

changes in the nature of the risks to public health referable to the consent holder’s activities or to activities of a comparable type:

(b)

changes in the knowledge of experts about the risks to public health referable to the consent holder’s activities or to activities of a comparable type.

209 Applicant for consent or renewal must advise consent authority of important changes

(1)

An applicant for a consent or for a renewal of a consent must promptly advise the consent authority of any important change in the applicant’s circumstances.

(2)

For the purposes of subsection (1), an important change is one that relates to any matter about which information is sought in, or in connection with, an application for a consent or an application for a renewal of consent, or the occurrence of an event, action, or failure that disqualifies the applicant from holding a consent under this Part, or a change of a kind specified by any applicable regulations.

(3)

Every person who contravenes subsection (1) commits an offence punishable on summary conviction by a fine not exceeding $10,000.

210 Administrative charges

(1)

A consent authority may fix charges payable by applicants for a consent or for the renewal of a consent.

(1)

A consent authority that is a territorial authority may fix charges payable in respect of any function performed under this Part by the consent authority, or by a reviewer or an assessor who is appointed by the consent authority.

(2)

Charges fixed under subsection (1) may be either specific amounts or determined by reference to scales of charges or other formulae fixed by the consent authority.

(3)

If the consent authority is a territorial authority, charges Charges may be fixed under subsection (1) only after using the special consultative procedure set out in section 83 of the Local Government Act 2002.

(4)

If the consent authority is a DHB, charges may be fixed under subsection (1) only at a public meeting of the board held after the DHB has given public notice of the substance of the proposal and the meeting of the board at which it is to be considered.

(5)

The sole purpose of a charge fixed under subsection (1) or fixed or authorised by section 194B is to recover the reasonable costs incurred by the consent authority in respect of the activity to which the charge relates.

(6)

If a charge fixed under subsection (1) is payable to a consent authority, the consent authority need not perform the action to which the charge relates until the charge has been paid to it in full.

Subpart 4—Cancellation of consents by consent authority and surrender of consents

211 Mandatory cancellation

A consent authority must cancel a consent if, after giving notice under section 213 and considering any submissions given under that section, the authority is satisfied that—

(a)

the consent was issued because of any false or fraudulent representation or declaration, made either orally or in writing; or

(b)

the cheque for the payment of the charge for the application on which the consent was issued has been dishonoured; or

(c)

the consent holder has ceased to carry on the activity for which the consent was issued.

212 Discretionary cancellation

A consent authority may cancel a consent if, after giving notice under section 213 and considering any submissions given under that section, the authority is satisfied that the consent holder has breached 1 or more requirements of this Part or of any applicable regulations or of any conditions imposed on the consent, and that cancellation is in the interest of protecting public health.

213 Steps to be taken before consent cancelled

(1)

A consent authority may not cancel a consent under this Part unless it—

(a)

has given notice to the consent holder stating why the authority believes that the consent must or should be cancelled and informing the consent holder that the consent holder may, within 10 working days after the date of the notice, make written submissions to the consent authority on the proposed cancellation; and

(b)

has considered the submissions (if any) received in response to, and within the 10 working days specified by, the notice given under paragraph (a).

(2)

The consent authority must give the person whose consent has been cancelled a notice stating the grounds on which the consent has been cancelled and the date on which the cancellation takes effect (which may not be earlier than the date of the notice).

214 Surrender of registration consent

(1)

A consent holder may at any time surrender the consent holder’s consent.

(2)

If a consent holder ceases, for any reason, to carry on the activity for which the consent was issued, the consent holder must notify the authority within 20 working days after the cessation and surrender the consent to the authority.

Reviews and appeals

215 Review of refusal or cancellation

(1)

This section applies to a person—

(a)

whose application for a consent or for a renewal of a consent has been refused; or

(b)

whose consent has been cancelled; or

(c)

who objects to a condition imposed on the consent issued to the person.

(2)

The person may apply to the chief executive of the body that is the consent authority for a review of the decision to refuse the application or to cancel the consent or to impose the condition.

(3)

The person must apply not later than 20 working days after the day on which the person is notified of the decision.

216 Appointment of reviewer and conduct of review

(1)

On receipt of an application made in accordance with section 215, the chief executive of the consent authority must appoint a person to conduct the review (the reviewer).

(2)

The reviewer—

(a)

must conduct the review independently; and

(b)

must not have had any previous involvement in the case; but

(c)

may be an employee of the consent authority.

(3)

The purpose of the review is to determine whether or not the consent authority’s decision is well founded.

(3)

The reviewer must assess the decision under review by applying the relevant provision of this Part.

(4)

The reviewer must conduct the review on the papers unless the reviewer finds that the purpose of the review cannot be achieved without holding a hearing.

(5)

If, after conducting the review, the reviewer considers the decision well-founded upholds the decision, the reviewer must confirm the decision.

(6)

If, after conducting the review, the reviewer does not consider the decision well-founded uphold the decision, the reviewer must direct the consent authority to reconsider the decision, and to have regard to any matters specified by the reviewer.

(7)

The reviewer must give notice of the outcome of the review to the person who sought the review and to the consent authority.

217 Reconsideration by consent authority

(1)

The consent authority must promptly reconsider its decision if it has been directed to do so under section 216.

(2)

In reconsidering its decision, the consent authority must have regard to any matters specified by the reviewer.

(3)

On reconsideration, the consent authority may confirm or modify its original decision or replace it with a new decision.

(4)

The consent authority must give notice to the person who sought the review of the result of its reconsideration.

218 Right of appeal

(1)

A person whose application for a consent or for a renewal of a consent has been refused, or whose consent has been cancelled, may appeal to the District Court against the decision to refuse the application or to cancel the consent.

(2)

An appeal under subsection (1) may be exercised whether or not the appellant has sought a review under section 231.

(3)

An appeal—

(a)

must be brought to the Court in accordance with rules of court; and

(b)

must be filed in the Court within 20 working days after the person is notified of whichever of the following is the latest:

(i)

the decision of the consent authority:

(ii)

if that decision has been confirmed on a review under section 216, that confirmation:

(iii)

if that decision has been reconsidered by the consent authority under section 217, the result of decision on the reconsideration.

(4)

The District Court may, on application made before or after the expiry of the period fixed by subsection (3)(b), extend that period.

219 Notice of right of appeal

When notifying a person under this Part of any decision against which section 218 gives him or her a right of appeal, the consent authority must also notify the person in writing of the right of appeal and the time within which an appeal must be lodged.

220 Decisions to have effect pending determination of appeal

A decision against which an appeal is lodged under section 218 continues in force, unless the District Court orders otherwise.

221 Procedure on appeal

(1)

An appeal under section 218 must be heard as soon as is reasonably practicable after it is lodged.

(2)

An appeal under section 218 is by way of rehearing.

(3)

On hearing the appeal, the District Court may—

(a)

confirm, reverse, or modify the decision or action appealed against:

(b)

make any other decision or take any other action that the consent authority could have made or taken:

(c)

refer the matter or an aspect of the matter back to the consent authority for reconsideration under section 217.

(4)

The Court must not review—

(a)

any decision or action not appealed against; or

(b)

any part of any decision or action not appealed against.

222 Court’s decision final

(1)

The decision of the District Court on an appeal under this Part is final.

(2)

Subsection (1) is subject to section 225.

223 Court may refer matter back for reconsideration

(1)

Instead of determining an appeal under this Part, the District Court may direct the consent authority to reconsider, either generally or in respect of any specified aspect, the whole or any part of the decision.

(2)

In giving a direction under subsection (1), the Court—

(a)

must state its reasons for the direction; and

(b)

may give any other directions it thinks just in relation to the matter referred back for reconsideration.

(3)

The consent authority must reconsider the matter and, in doing so, must—

(a)

take the Court’s reasons into account; and

(b)

give effect to the Court’s directions.

224 Orders as to costs

On an appeal under section 218, the District Court may order any party to the appeal to pay to any other party to the appeal any or all of the costs incurred by the other party in respect of the appeal.

225 Appeal on question of law

(1)

A party to an appeal under this Part may appeal to the High Court on a question of law only.

(2)

The appeal must be heard and determined in accordance with rules of court.

Subpart 5—Public health risk management plan

226 Director-General may must publish guidelines

(1)

The Director-General may publish guidelines for public health risk management plans for a regulated activity of a particular kind.

(1)

The Director-General must publish guidelines for public health risk management plans for each regulated activity that may not be carried on without a public health risk management plan.

(2)

A public health risk management plan that follows or adopts the substance of relevant guidelines is presumed to be in order unless it is shown that in the circumstances of the particular case the guidelines are inapplicable.

227 When approved public health risk management plan required

If any applicable regulations require a public health risk management plan in respect of a regulated activity of a particular kind, a person proposing to carry on a the regulated activity must have an approved plan,—

(a)

if that regulated activity may not be carried on without a consent, before applying for a consent for the activity; or

(b)

if that regulated activity does not require a consent, before commencing to carry on the regulated activity or, if the person was lawfully carrying on the activity before the commencement of any applicable regulations, before a date specified in those regulations.

228 Contents of public health risk management plan

(1)

Every public health risk management plan prepared for an activity that is a regulated activity of a particular kind must—

(a)

identify the risks to public health that may arise from that activity; and

(b)

identify mechanisms for preventing risks to public health arising from that activity and reducing and eliminating those risks if they do arise; and

(c)

set out a timetable—

(i)

for managing the risks to public health that have been identified as arising from that activity; and

(ii)

for implementing the mechanisms identified in accordance with paragraph (b).

(2)

Every public health risk management plan must be in writing and comply with the applicable regulations.

229 Public health risk management plan to be approved by assessor

(1)

If required by regulations, every a public health risk management plan must be submitted by the person proposing to carry on the regulated activity to an assessor for approval.

(2)

An assessor may, after any alteration to the public health risk management plan that is considered necessary by the assessor and made by agreement with the person proposing to carry on the regulated activity, approve that plan.

(3)

If an assessor decides not to approve a public health risk management plan, the assessor must notify the person proposing to carry on the regulated activity that the assessor has decided not to approve the plan and of the reasons for that decision.

(4)

If the assessor decides to approve a public health risk management plan, the assessor must—

(a)

issue to the person proposing to carry on the regulated activity a certificate to that effect; and

(b)

send a copy of the certificate to the relevant consent authority.

229A Public health risk management plan to be approved by consent authority

(1)

If required by regulations, a public health risk management plan must be submitted by the person proposing to carry on the regulated activity to the consent authority for approval.

(2)

The consent authority may, after any alteration to the public health risk management plan that is considered necessary by the consent authority and made by agreement with the person proposing to carry on the regulated activity, approve that plan.

230 Duration of plans

(1)

A public health risk management plan expires—

(a)

12 months after the relevant date; or

(b)

if a longer period (of not more than 48 months) or a shorter period (of not less than 6 months) is stated in the plan, on the expiry of that stated period after the relevant date.

(2)

The relevant date is the date of the plan’s most recent approval by an assessor or by the consent authority.

231 Review and renewal of plans

(1)

Not later than 2 months before a public health risk management plan is due to expire, the person who carries on the regulated activity must—

(a)

review it, to assess whether it needs to be altered for any reason or replaced with a new plan; and

(b)

submit the existing, revised, or new plan to an assessor, or to the consent authority, as the case requires.

(2)

The provisions of section 229 or, as the case requires, section 229A, apply whenever a plan is submitted to an assessor or to the consent authority under this section.

Subpart 6—Records of consents

232 Records

(1)

Each consent authority must keep a record of the consents it issues.

(2)

Two or more consent authorities may jointly operate a combined record of the consents issued by each authority.

233 Director-General may keep nationwide record

(1)

The Director-General may keep, in addition to the records kept by consent authorities, a nationwide record of the information specified in section 235(1) for all or any kinds of regulated activities.

(2)

If the Director-General keeps a record under this section, the consent authority must promptly send the Director-General a copy of any particularscopy of any particulars placed on the record kept by the consent authority.

(2)

If the Director-General keeps a record under this section, the consent authority must promptly send the Director-General a copy of

(a)

any information entered under section 235(1):

(b)

any amendment of that information under section 236:

(c)

any record, under section 237, of the expiry, cancellation, or surrender of a consent.

234 Form of record

(1)

A record kept by a consent authority or, as the case may be, the Director-General may be kept in any form the consent authority or the Director-General directs, including in an electronic form.

(2)

Subsection (1) is subject to any regulations made under this Part.

235 Information to be recorded

(1)

The information to be entered in each record is—

(a)

the name and contact details of each person to whom a consent has been issued:

(b)

if that person is a body corporate or a partnership, the address of the office or the principal office of the body corporate or partnership, and the name and contact details of every person concerned in the management of the body corporate or partnership:

(c)

the street address or other identification of every location in which or from which the regulated activity is carried on:

(d)

an address for service of the consent holder:

(e)

whether a public health risk management plan has been approved for the activity and, if so, a current copy of that plan:

(f)

any conditions imposed on the consent.

(g)

any other prescribed particulars.

(2)

The consent authority must also keep a record of the contact details of every person to whom a consent has been issued and any other prescribed particulars.

236 Amendments of records

A consent authority may at any time amend the record to reflect any changes or to correct any errors.

237 Cancellation, etc, of entries

(1)

On the expiry, cancellation, or surrender of a consent, the consent authority must record that occurrence and its date on the record.

(2)

A record under subsection (1) cancels the former consent holder’s consent as from the date shown in the record.

238 Inspection of records

(1)

Each consent authority that keeps a record must keep, during its ordinary office hours, a published form of the record open make the information entered under section 235(1) reasonably available for public inspection at the offices of the authority where the consents are issued.

(2)

If the Director-General keeps a record under section 233, the Director-General must keep, during the ordinary office hours of any office of the Ministry of Health specified by the Director-General, a published form of the record open for public inspection at that office make the record reasonably available for public inspection at any office of the Ministry of Health specified by the Director-General.

(3)

The consent authority and, if applicable, the Director-General must each ensure that there are available, during their respective ordinary office hours,

(a)

copies of the published form of the applicable record; or

(b)

suitable facilities for obtaining print-outs of the published form of the applicable record.

(4)

Each consent authority and the Director-General must each permit a member of the public, on payment of any fee set by the authority or, if applicable, by the Director-General to make copies of entries in the record or to obtain a print-out of required entries.

Subpart 7Amendments to Schedule 3 and regulations

239 Minister may recommend amendment to Schedule 3

(1)

The Minister may recommend to the Governor-General that Schedule 3 be amended.

(2)

Before the Minister makes a recommendation, the Minister must consult any persons likely to be affected by the recommendation, including, without limitation, representatives of local government and Māori interests, that the Minister considers appropriate.

240 Recommending additions to Schedule 3

(1)

In deciding whether to recommend that an activity be added to Schedule 3, the Minister must consider

(a)

whether the activity poses a risk to public health and, if so, the nature and magnitude of the risk:

(b)

if the risk to public health is constituted by potential harm, the likelihood of that harm occurring:

(c)

whether the risk of that harm is likely to be prevented, mitigated, or adequately managed by regulations:

(d)

whether the activity is already regulated under another enactment.

(2)

Before the Minister recommends that an activity be added to Schedule 3, the Minister must be satisfied that the activity poses a risk to public health.

(3)

Before the Minister recommends that an activity be added to Part 1 of Schedule 3, the Minister must be satisfied that it is appropriate that persons carrying on the activity be required to have 1 or more of the following:

(a)

a current consent:

(b)

an approved public health risk management plan:

(c)

a periodic assessment of the activity.

(4)

In deciding on the substance of the recommendations under subsection (3), the Minister must consider the nature of the activity, the seriousness of the risk posed by the activity, and the degree to which proposed requirements to be specified in regulations are proportionate to the risk posed by the activity.

241 Recommending removals from Schedule 3

Before the Minister recommends that an activity be removed from Schedule 3, the Minister must be satisfied that the activity no longer poses a risk to public health.

242 Amendment to Schedule 3

The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister, amend Schedule 3 by

(a)

adding the description of an activity; or

(b)

removing the description of an activity; or

(c)

amending the description of an activity.

243 Regulations in respect of regulated activities

The Governor-General may, by Order in Council, on the recommendation of the Minister, make regulations for all or any of the following purposes:

(a)

prescribing requirements, standards, criteria, mandatory objectives, functional requirements, performance measures, or objectives that must be observed or attained in carrying on a regulated activity of a particular kind:

(b)

prescribing specifications or criteria for any place or premises in which a regulated activity of a particular kind is carried on or for any equipment used in carrying on that activity:

(c)

providing that a regulated activity described in Part 1 of Schedule 3 may not be carried on in a district without a current consent of a consent authority in the district and prescribing a maximum period of not more than 36 months up to which such a consent, or any renewal of any consent, may, in accordance with the determination of the consent authority, be in force:

(d)

providing that, instead of or in addition to the requirement for a consent authorised by paragraph (c), a regulated activity described in Part 1 of Schedule 3 may not be carried on in any district without a current public health risk management plan that has been approved by the consent authority in that district and prescribing the form of such a public health risk management plan:

(e)

determining whether a regulated activity described in Part 1 of Schedule 3 may be carried on in any district only if the compliance in the district of the activity with this Part, the regulations, any conditions on any consent, or any public health risk management plan is periodically assessed by an assessor and prescribing the nature of such assessments and the intervals at which they must be made:

(f)

determining whether the relevant consent authorities for a regulated activity described in Part 1 of Schedule 3 are to be DHBs or territorial authorities or authorising the Director-General to determine, in respect of a regulated activity of a particular kind, whether the relevant consent authority for any area is to be the DHB or the territorial authority that is responsible for that area:

(g)

prescribing the matters that must be contained in an application for a consent or in an application for a renewal of a consent:

(h)

prescribing the kinds and forms of records that persons carrying on regulated activities of particular kinds must keep and the particulars that must be recorded in those records:

(i)

requiring any person carrying on a regulated activity of a particular kind to be accredited by a professional or occupational body recognised by the Director-General, and requiring compliance with the applicable rules or code of practice issued or adopted by that body:

(j)

prescribing any particulars to be entered on a record under this Part:

(k)

prescribing the periods for which, and the ways in which, records that consent authorities receive and make under this Part must be held by those authorities.

244 Incorporation by reference

(1)

Any regulations made under section 243 may incorporate material by reference.

(2)

Sections 337 to 344 (the standard provisions about incorporation by reference) apply.

Subpart 98—Assessors

Appointment of assessors

245 Appointment of assessors

(1)

The Director-General or a territorial authority that is a consent authority may, by notice in writing, appoint 1 or more persons as assessors for 1 or more specified regulated activities on any terms and conditions that the Director-General or territorial authority considers appropriate.

(2)

Terms and conditions referred to in subsection (1) include, without limitation, terms enabling the Director-General or territorial authority to suspend or revoke the appointment in any specified circumstances.

(3)

Before appointing a person or body as an assessor, the Director-General or territorial authority must be satisfied that the person—

(a)

has the experience, technical competence, and other qualifications to undertake the functions of an assessor; and

(b)

has in place effective arrangements to avoid or manage any conflicts of interest that may arise; and

(c)

meets any other requirements set out in regulations made under section 258.

(3A)

For the purpose of subsection (3)(b), the fact that a person is an environmental health officer does not itself mean that the person would have a conflict of interest if he or she were appointed as an assessor.

(4)

No person appointed by the Director-General under subsection (1) to be an assessor is, because of that appointment, employed in the public service for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956.

(5)

It is a condition of every appointment of a body as an assessor that, with the exception of administrative functions and related support matters, any functions and activities of the body that are specified in the terms of the appointment are to be carried out only by individuals who have themselves been appointed as assessors.

(6)

The conditions that are imposed by or under this section are in addition to any condition as to the provision of returns, records, and other information that may be imposed on an assessor in relation to a particular regulated activity by regulations made under Part 2.

(7)

An appointment under this section may be made only

(a)

if regulations have been made under section 194B; and

(b)

with effect on a date that is on or after the date on which the first regulations to be made under section 194B come into force.

245A Geographical areas in respect of which assessors appointed

(1)

An assessor appointed under section 245 by a territorial authority may exercise functions and powers under this Part only in the district of that territorial authority.

(2)

Nothing in subsection (1) prevents the same person being appointed as an assessor by more than one territorial authority.

(3)

An assessor appointed under section 245 by the Director-General may exercise functions and powers under this Part only in the specific health district or districts determined by the Director-General at the time of making the appointment.

246 Surrender of appointment

(1)

An assessor may at any time surrender his or her or its appointment by notice in writing to that effect to the Director-General or territorial authority.

(2)

A surrender takes effect on the expiry of 3 months after the date of the receipt of the notice by the Director-General or territorial authority, or on such earlier date as the Director-General or territorial authority may approve.

(3)

On or before the date on which the surrender takes effect, the assessor must send his or her or its notice of appointment to the Director-General or territorial authority.

Directory of assessors

247 Directory of assessors

(1)

The Director-General must maintain a directory of persons who have been appointed as assessors.

(2)

The Director-General must—

(a)

make the directory available for public inspection, without fee, at reasonable hours at the head office of the Ministry; and

(b)

supply to any person, on request and on payment of a reasonable charge, a copy of the directory or part of the directory.

(3)

The directory may be kept—

(a)

in electronic form (for example, on the Ministry’s website); or

(b)

in any other manner that the Director-General thinks fit.

248 Matters to be contained in directory

(1)

The directory must contain all of the following information, to the extent that the information is relevant, for each assessor whose name is entered on the directory:

(a)

name and business contact details; and

(b)

date and term of appointment; and

(c)

any conditions on the appointment; and

(d)

any other particulars that may be required by or under regulations made under section 258.

(2)

The directory may also include any other information relevant to a person’s appointment as an assessor that the Director-General considers appropriate.

249 Territorial authority must supply information on assessors to Director-General

A territorial authority that has appointed an assessor must supply the Director-General with the information concerning that assessor that is necessary to maintain the directory kept under section 247.

Functions, duties, and powers of assessors

250 Functions of assessors

The functions of an assessor are—

(a)

to assess, review, and where appropriate, approve risk management plans; and

(b)

to monitor, verify, and certify that a regulated activity consent holder is undertaking the regulated activity in accordance with the provisions of this Act and the regulations, the activity consent. and any public health risk management plan; and

(c)

to monitor and verify whether regulated activities for which a regulated activity consent is not required are being undertaken in accordance with the provisions of this Act and the regulations.

251 Accountability of assessor for performance of functions

(1)

An assessor appointed by the Director-General is accountable to the Director-General for the discharge of the assessor’s functions.

(2)

An assessor appointed by a territorial authority is accountable to that territorial authority for the discharge of the assessor’s functions.

(3)

On the request of the person or body that appointed an assessor, the assessor must give that person or body reasonable access to any records held by the assessor in connection with the assessor’s functions under this subpart, to enable the appointing person or body to assess whether the assessor is properly discharging those functions.

252 Duty of assessor to disclose potential conflict of interest

An assessor must, as soon as practicable, inform the Director-General or territorial authority that appointed the assessor in writing if either of the following arises:

(a)

an event or situation occurs that has the effect, or may have the effect, that the assessor cannot maintain an appropriate degree of impartiality and independence in relation to the relevant functions and activities of the assessor; or

(b)

the assessor is considering assuming any other statutory roles or functions that might conflict with the functions and activities of the assessor.

253 Powers of assessors

(1)

For the purpose of performing any function or activity as an assessor, an assessor may—

(a)

enter any land, building, vehicle, or craft that is owned, occupied, or used by a person carrying on a regulated activity for the purpose of exercising any of the powers set out in this section; and

(b)

inspect all records and documents of every description in the possession or control of a person carrying on a regulated activity that are required to be kept under this Part, and make copies of, or take extracts from, those records and documents; and

(c)

require, by notice in writing, any person who has possession or control of information, records, or documents of the kind described in paragraphs (b) and (c) to supply to the assessor, in a manner specified in the notice, all or any of that information, or all or any of those records or documents; and

(d)

seize any information, records, or documents of the kind described in paragraphs (b) and (c); and

(e)

conduct any inspections, surveys, inquiries, tests, and measurements in relation to the regulated activity that are reasonably necessary, and do all things that are reasonably necessary to enable those inspections, surveys, inquiries, tests, and measurements to be carried out (including the marking or photographing of any thing or article); and

(f)

direct a person carrying on a regulated activity to conduct any inspections, surveys, inquiries, tests, and measurements that are reasonably necessary to assess a risk to public health associated with that activity; and

(g)

provide information obtained from persons carrying on regulated activities to the Director-General.

(1A)

Nothing in subsection (1) limits any enactment that imposes a prohibition or restriction on the availability of any information.

(2)

When entering any land, building, vehicle, or craft under this section, an assessor may take on to the land or building or into the vehicle or craft any appliances, machinery, and equipment reasonably necessary to carry out the assessors functions.

(3)

This section is subject to sections 352 to 358 (general provisions about entry and search powers).

254 Restrictions on entry

(1)

Despite section 253, no assessor may enter any land or building that is a defence area (within the meaning of section 2(1) of the Defence Act 1990) except in accordance with a written agreement between the Director-General and the Chief of Defence Force entered into for the purposes of this section and for the time being in force.

(2)

Nothing in section 253 limits any enactment that imposes a prohibition or restriction on the availability of any information.

255 Requirement for warrant to enter dwellinghouse or marae

(1)

An assessor may not exercise the powers conferred by section 253 to enter a dwellinghouse or a marae unless that assessor has obtained a warrant in accordance with subsection (2).

(2)

Any District Court Judge or Justice of the Peace or Community Magistrate or any Registrar (the issuing officer) who is satisfied, on application in writing from an assessor made on oath, that there is good reason for an assessor to enter a dwellinghouse or marae in order to exercise a power under section 253, may issue a warrant.

(3)

This section is subject to sections 346 to 351 (general provisions about search warrants).

256 Review of decisions of assessors

(1)

A regulated activity consent holder may request a review by the Director-General of any of the following decisions by an assessor:

(a)

a finding, assessment, or recommendation in relation to the compliance of that regulated activity consent holder with the requirements of this Act, any regulations, the activity consent, or risk management plan; or

(b)

a finding, assessment, or recommendation in relation to, or a refusal to approve, a public health risk management plan.

(2)

A person conducting a regulated activity for which a regulated activity consent is not required may request a review by the Director-General of any finding, assessment, or recommendation in relation to compliance of that person with this Act and any regulations.

(1)

A regulated activity consent holder may request a review of an assessor’s decision described in subsection (2) by

(a)

the Director-General if the assessor was appointed by the Director-General; or

(b)

the chief executive of a territorial authority if the assessor was appointed by that territorial authority.

(1A)

A decision referred to in subsection (1) is

(a)

a finding, assessment, or recommendation by an assessor in relation to the compliance of that regulated activity consent holder with the requirements of this Act, any regulations, the activity consent, or risk management plan; or

(b)

a finding, assessment, or recommendation by an assessor in relation to, or a refusal to approve, a public health risk management plan.

(2)

A person conducting a regulated activity for which a regulated activity consent is not required may request a review of any finding, assessment, or recommendation by an assessor in relation to compliance of that person with this Act and any regulations by

(a)

the Director-General if the assessor was appointed by the Director-General; or

(b)

the chief executive of a territorial authority if the assessor was appointed by that territorial authority.

(3)

Any request for a review made under this section must be forwarded to the Director-General reviewer within 2 months after the date when the decision of the assessor is made known to the person carrying on the regulated activity.

(4)

The Director-General reviewer must, after seeking any advice that her he or she considers necessary, confirm, vary, or reverse the decision of the assessor.

Replacement of assessors

257 Consent holder must not replace assessor without consent of consent authority

A regulated activity consent holder must not replace an assessor engaged by the consent holder to perform the functions in section 250 in relation to a regulated activity unless the consent holder obtains the prior written consent of the consent authority.

Regulations relating to assessors

258 Regulations

The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(a)

prescribing requirements, in addition to the requirements set out in section 245(3)(a) and (b), for appointment as an assessor:

(b)

prescribing procedures relating to the appointment and suspension of assessors and the revocation of approval of assessors:

(c)

prescribing particulars to be contained in the directory of assessors maintained under section 247.

Part 7 Emergencies and border health

Subpart 1—Emergencies

259 Minister may declare emergency

(1)

The Minister may, by notice in the Gazette, declare a health emergency if he or she has reasonable grounds to believe that—

(a)

there is throughout New Zealand or in any place or area in New Zealand a serious risk to public health (whether arising from within New Zealand or from overseas); and

(b)

the exercise of powers in this subpart will help to prevent, reduce, or eliminate or manage that risk.

(2)

The declaration must—

(a)

be in writing and signed by the Minister; and

(b)

state the date on which it is signed; and

(c)

state the nature of the emergency that exists in each place or area specified in the declaration; and

(d)

be published in the Gazette.

Compare: 1956 No 65 s 70(1)

260 Duration of declaration by Minister

(1)

A declaration under section 259 takes effect as soon as it is signed.

(2)

The declaration expires 90 days after it is made unless it is—

(a)

sooner revoked by the Minister or by an emergency order; or

(b)

extended under subsection (3).

(3)

The Minister may extend the duration of the declaration if he or she is satisfied that the grounds for declaring the emergency still exist.

(4)

The extension of duration under subsection (3) must be in writing and be signed by the Minister and state the date on which it is signed.

(5)

A declaration that has been extended under subsection (3) expires, unless sooner revoked by the Minister or by the making of an emergency order, 90 days after the date of the instrument that extended it.

(6)

The power of extension under subsection (3) may be exercised only once.

261 Minister may amend or revoke declaration

(1)

The Minister may revoke or amend a declaration made under section 259.

(2)

The revocation or amendment must be in writing and be signed by the Minister and state the date on which it is signed.

262 Minister must review need for declaration

The Minister must, every 28 days while a declaration is in force, review the continuing need for the declaration.

263 Health emergency declared by Order in Council

(1)

The Governor-General may, by Order in Council, on the recommendation of the Minister, declare that a health emergency exists in 1 or more specified places, or in 1 or more specified areas, or throughout New Zealand.

(2)

The Minister may make a recommendation under subsection (1) only if the Minister has reasonable grounds to believe that—

(a)

there is throughout New Zealand or in any place or area in New Zealand a serious risk to public health; and

(b)

the exercise of powers in this subpart will help to prevent, reduce, eliminate, or manage that risk.

(3)

An emergency order expires, unless revoked earlier, 6 months after it comes into force.

264 When emergency powers may be exercised

(1)

This section applies if—

(a)

an emergency has been declared by the Minister under section 259; or

(b)

an emergency has been declared by the Governor-General, by Order in Council, under section 263; or

(c)

a state of emergency has been declared under the Civil Defence Emergency Management Act 2002; or

(d)

an epidemic notice is in force.

(2)

A medical officer of health may, if this section applies and the emergency or epidemic notice affects his or her district, exercise all or any of the powers in sections 266 to 273.

(3)

The Director-General may authorise a medical officer of health to operate in a specified area outside his or her district, and in that case subsection (2) and sections 266 to 273 apply as if the specified area is part of both

(a)

the medical officer of health’s district; and

(b)

the health district of which it is in fact part.

(2)

A medical officer of health may, if this section applies, exercise all or any of the powers in sections 266 to 273, and those sections apply as if the places or areas in which the emergency exists, or (if the emergency exists throughout New Zealand) New Zealand, is part of the medical officer of health’s district.

Compare: 1956 No 65 s 70(1) and (4)

265 State of emergency under other enactments

(1)

This section applies to the exercise of any powers by a medical officer of health under this subpart arising from the declaration of a state of emergency under the Civil Defence Emergency Management Act 2002.

(2)

If this section applies, the medical officer of health is responsible, in relation to the exercise of powers under this subpart in connection with that state of emergency, to—

(a)

the person who, under the Civil Defence Emergency Management Act 2002, is responsible for managing the emergency declared under that Act; but

(b)

if, and to the extent that, the Director-General directs that paragraph (a) is not to apply, the Director-General, and the medical officer of health must comply with the Director-General’s directions.

266 General emergency powers

(1)

The general emergency powers that may be exercised by a medical officer of health to whom section 264(2) applies are to—

(a)

declare any land, building, or thing to be insanitary, and prohibit its use for any specified purpose:

(b)

cause any insanitary, contaminated, or affected building to be pulled down, and the timber and other materials forming part of the building to be destroyed or otherwise disposed of in a manner he or she considers appropriate:

(c)

cause insanitary, contaminated, or affected things to be destroyed or otherwise disposed of in a manner he or she considers appropriate:

(d)

cause animals to be vaccinated and affected animals to be destroyed, in a manner he or she considers appropriate:

(e)

cause—

(i)

vectors to be destroyed; and

(ii)

vector habitats or reservoirs to be decontaminated; and

(iii)

insects or animals that pose hygiene risks to be decontaminated or destroyed:

(f)

require persons to report or submit themselves for medical examination at specified times and places:

(g)

subject to section 267, require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, disinfected, decontaminated, or fumigated in a manner he or she considers appropriate:

(h)

require places, buildings, ships, vehicles, aircraft, animals, or things to be tested as he or she considers appropriate:

(i)

forbid persons, ships, vehicles, aircraft, animals, or things to—

(i)

come or be brought to any port or place in the health district from any port or place that is, or is believed to be, affected by the emergency or epidemic; or

(ii)

enter or leave any land, building, or place affected by the emergency or epidemic:

(j)

require people to remain in the health district or the place in which they are isolated or quarantined until they—

(i)

have been medically examined and found to no longer pose a risk to public health; or

(ii)

have undergone preventive treatment (including any specified kind of vaccination) that he or she may require in any case such that the medical officer of health considers that they no longer pose a risk to public health:

(k)

forbid the removal of ships, vehicles, aircraft, animals, or other things from the health district, or from one port or part of a port to another, or from the place where they are isolated or quarantined, until they have been decontaminated or otherwise treated or examined and found to no longer pose a risk to public health:

(l)

prohibit the keeping of animals or of any species of animal in any specified part of the health district:

(m)

authorise the transportation of and storage of bodies anywhere (whether inside or outside the health district) for the purpose of enabling the identification of those persons:

(n)

authorise the transportation of and disposal of bodies, if the medical officer of health considers it necessary in the interests of public health.

(2)

If a medical officer of health exercises any power under this section he or she must, as soon as practicable, notify—

(a)

the Civil Aviation Authority and any airport likely to be affected by the exercise of the power; and

(b)

Maritime New Zealand and any port likely to be affected by the exercise of the power; and

(c)

any other agency likely to be affected by the exercise of the power.

Compare: 1956 No 65 s 70(1)(a)–(l)

267 Safeguards for persons isolated or subject to quarantine under section 266(1)(g)

(1)

A person who is quarantined under section 266(1)(g)

(a)

is subject to section 290; and

(b)

the provisions of sections 291 to 293 (rights of appeal) apply to that person; and

(c)

the other provisions of subpart 2 of this Part apply accordingly.

(2)

A person who is isolated under section 266(1)(g)

(a)

must not be required to remain in isolation for more than 28 days under section 266(1)(g); but

(i)

an application for a health risk order may be made under section 112 while the person is in isolation; and

(ii)

subpart 3 of Part 4 applies accordingly; and

(b)

must, if he or she requests a review, have his or her isolation reviewed by a medical officer of health as soon as practicable after the expiry of 14 days after the person is required to be isolated under section 266(g).

268 Emergency power relating to redirection of aircraft

(1)

If section 264(2) applies to any medical officer of health, the medical officer of health may require the pilot in charge of an aircraft that is flying to, or has arrived at an airport in, New Zealand to travel, as soon as practicable, to another airport in New Zealand.

(2)

A medical officer of health must not impose the requirement unless—

(a)

he or she is satisfied that the redirection is necessary to prevent or manage the emergency or epidemic; and

(b)

he or she is satisfied that measures necessary to deal with the situation can more practicably be carried out at the other place; and

(ba)

he or she is satisfied that the redirection will not threaten the safety of the aircraft; and

(c)

the medical officer of health has consulted about the proposed requirement with other agencies likely to be affected by it (including the Civil Aviation Authority).

(3)

If a requirement is imposed under this section the medical officer of health must, as soon as practicable, notify—

(a)

the Civil Aviation Authority and any airport likely to be affected by the requirement; and

(b)

any other agency likely to be affected by the requirement.

Compare: 1956 No 65 s 74D

269 Emergency powers relating to closure of premises and restriction of association

A medical officer of health to whom section 264(2) applies may—

(a)

by written order to the person in charge of the premises concerned, do either or both of the following:

(i)

require to be closed immediately, until further order or for a fixed period, any premises within the health district (or a stated area of the district):

(ii)

require any premises within the health district (or a stated area of the district) to undergo specified measures to address risks to public health within those premises, and require any premises in respect of which those measures are not taken to be closed immediately until further order or for a fixed period:

(b)

by order published or broadcast in a manner the medical officer of health considers appropriate and that is likely to come to the attention of affected persons, do any of the following:

(i)

require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description:

(ii)

require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description in which measures described in the order designed to contain risks to public health are not operating:

(iii)

forbid people to gather in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district):

(iv)

forbid people to gather in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district) in which measures described in the order designed to contain risks to public health are not operating.

Compare: 1956 No 65 s 70(1)(la) and (m)

270 Condition relating to orders made under section 269

(1)

An order under section 269 does not apply to—

(a)

any premises that are, or any part of any premises that is, used solely as a private dwellinghouse or a marae; or

(b)

any premises within the parliamentary precincts (within the meaning of section 3 of the Parliamentary Service Act 2000); or

(c)

any premises whose principal or only use is as a courtroom or judge’s chambers, or a court registry; or

(d)

any premises that are, or are part of, a prison (within the meaning of section 3(1) of the Corrections Act 2004).

(2)

An order under section 269 may exempt people engaged in necessary work in the premises to which it relates.

Compare: 1956 No 65 s 70(1A) and (1B)

271 Powers of medical officer of health to requisition things

(1)

A medical officer of health to whom section 264(2) applies may—

(a)

by requisition in writing served on its owner or occupier or other person for the time being in charge of it, take possession of, occupy, and use any land or building (whether public or private) that in his or her opinion is required for the accommodation, assessment, treatment, or care of persons (including persons subject to isolation), or storage of medical supplies:

(b)

by requisition in writing served on the owner, occupier, or other person for the time being in charge of it, take possession of, occupy, and use any land, building, vehicle, or craft (other than an aircraft), or other thing, whether public or private, that in his or her opinion is required for the storage, transport, or disposal of bodies:

(c)

by requisition in writing served on the owner or other person for the time being in charge of it, take possession of and use any vehicle or craft, or other thing, whether public or private, that in his or her opinion is required for the transport of—

(i)

persons, medical personnel, medicine, medical equipment or devices, food, or drink; or

(ii)

clothing, bedding, or tents or other temporary facilities or structures; or

(iii)

personnel involved in loading, moving, unloading, distributing, erecting, or otherwise dealing with anything transported or to be transported under subparagraph (i) or (ii):

(d)

by requisition in writing served on the occupier of any premises or on any person for the time being in charge of any premises, require to be delivered to him or her in accordance with his or her order any medicines and articles of food or drink, and any other materials that he or she considers necessary for the treatment of persons:

(e)

by requisition in writing served on the owner, occupier, or other person for the time being in charge of it, requisition any other thing that in his or her opinion is reasonably necessary to requisition to—

(i)

preserve human life; or

(ii)

manage the emergency or epidemic.

(2)

If the owner or occupier or person in charge of any property that is to be requisitioned under this section cannot be immediately found, a medical officer of health or any person authorised by a medical officer of health may immediately take possession of it and use the requisitioned property.

(3)

If a person takes possession of any requisitioned property under subsection (2), the person must ensure that, as soon as is reasonably practicable in the circumstances and no later than 7 days after the property is taken into possession, a written notice is given to the owner, occupier, or person formerly in charge of the requisitioned property stating—

(a)

that the property has been requisitioned; and

(b)

the name of the person who has taken possession of it.

(4)

If a medical officer of health or any other person exercises any power under this section, the medical officer of health or other person must, as soon as practicable, notify

(a)

the Civil Aviation Authority and any airport likely to be affected by the exercise of the power; and

(b)

Maritime New Zealand and any port likely to be affected by the exercise of the power; and

(c)

any other agency likely to be affected by the exercise of the power.

(4)

If a medical officer of health or any other person exercises any power under this section, the medical officer of health or other person must, as soon as practicable, notify any agency, port, or airport, that is likely to be affected by the exercise of the power.

Compare: 1956 No 65 s 71(1)

272 Power of entry and inspection

(1)

A medical officer of health, health protection officer, environmental health officer, or other person authorised by a medical officer of health may, for the purposes of enabling the exercise of the powers conferred by sections 266, 269, and 271,—

(a)

enter any land, premises, or craft; and

(b)

inspect that land, premises, or craft; and

(c)

do anything in relation to any persons, places, land, premises, craft, animals, or other things that the medical officer of health considers reasonably necessary to enable the exercise of those powers.

(2)

This section is subject to sections 352 to 358 (general provisions about entry and search powers).

(3)

If a medical officer of health or any other person exercises any power under this section, the medical officer of health or other person must, as soon as practicable, notify

(a)

the Civil Aviation Authority and any airport likely to be affected by the exercise of the power; and

(b)

Maritime New Zealand and any ports likely to be affected by the exercise of the power; and

(c)

any other agency likely to be affected by the exercise of the power.

(3)

If a medical officer of health or any other person exercises any power under this section, the medical officer of health or other person must, as soon as practicable, notify any agency, port, or airport, that is likely to be affected by the exercise of the power.

Compare: 1956 No 65 s 70(2)

273 Power to require information

(1)

A medical officer of health to whom section 264(2) applies, or a person authorised by the medical officer of health, may, by notice in writing, require any person to give to the medical officer of health the information described in subsection (2).

(2)

The information referred to in subsection (1) is information that, in the opinion of the medical officer of health or the person authorised by the medical officer of health, is reasonably necessary for the management of the emergency or the epidemic, as the case may be, and that is—

(a)

in the possession of the person who is asked to give the information; and

(b)

capable of being provided without unreasonable difficulty or expense.

(3)

The information required to be given under subsection (1) must be given—

(a)

in the form specified by the medical officer of health or the person authorised by the medical officer of health; and

(b)

within the reasonable time that is specified by the medical officer of health or the person authorised by the medical officer of health; and

(c)

free of charge.

Compare: 2002 No 33 s 76

274 Non-compliance with requisition offence

Every person who refuses or fails to comply with any requisition under section 271, or who counsels, procures, aids, or incites any other person so to do, or who interferes with or obstructs the medical officer of health or any person acting under the authority of the medical officer of health in the exercise of any powers under section 271, commits an offence and is liable on summary conviction,—

(a)

in a case where the refusal, failure, or other unlawful action was intentional or reckless, to a term of imprisonment not exceeding 3 months or to a fine not exceeding $50,000, or to both; or

(b)

in any other case where the refusal or failure is without reasonable excuse, to a fine not exceeding $20,000.

Compare: 1956 No 65 s 71(3)

275 Power of members of police to assist medical officer of health

(1)

A member of the police may do any thing reasonably necessary (including using force)—

(a)

to help a medical officer of health or any person authorised by a medical officer of health in the exercise or performance of powers or functions under any of sections 266 to 273; or

(b)

to help a person to do a thing that a medical officer of health or any person authorised by a medical officer of health has caused or required to be done in the exercise or performance of powers or functions under any of sections 266 to 273; or

(c)

to prevent people from obstructing or hindering a medical officer of health or any person authorised by a medical officer of health in the exercise or performance of powers or functions under any of sections 266 to 273; or

(d)

to prevent people from obstructing or hindering a person doing a thing that a medical officer of health or any person authorised by a medical officer of health has caused or required to be done in the exercise or performance of powers or functions under any of sections 266 to 273; or

(e)

to compel, enforce, or ensure compliance with a requirement made by a medical officer of health or any person authorised by a medical officer of health in the exercise or performance of powers or functions under any of sections 266 to 273; or

(f)

to prevent, or reduce the extent or effect of, the doing of a thing that a medical officer of health or any person authorised by a medical officer of health has forbidden or prohibited in the exercise or performance of powers or functions under any of sections 266 to 273.

(2)

A member of the police acting under subsection (1) may at any time do any or all of the following things:

(a)

enter into or on any land, building, aircraft, ship, or vehicle:

(b)

inspect any land, building, aircraft, ship, or vehicle, and any thing in or on it:

(c)

whether for the purposes of paragraph (a) or (b) (or both) or in the exercise of a power conferred by subsection (1),—

(i)

stop a ship or vehicle, or a taxiing aircraft; or

(ii)

prevent a stationary aircraft, ship, or vehicle from moving; or

(iii)

prevent an aircraft or ship or vehicle from departing.

(3)

Subsection (2)

(a)

does not limit the generality of subsection (1); but

(b)

is subject to sections 352 to 358 (general provisions about entry and search powers).

(4)

A member of the police may do a thing authorised by subsection (1) or (2) whether or not a medical officer of health has asked him or her to do so.

(5)

Subsections (2) to (6) of section 314B, and sections 314C and 314D, of the Crimes Act 1961, with any necessary modifications, apply to the powers conferred by subsection (2)(c)

(a)

as if they were a statutory search power within the meaning of section 314A of that Act; but

(b)

as if a ship or taxiing aircraft were a vehicle.

Compare: 1956 No 65 s 71A

276 Offences relating to obstructing medical officer of health or people assisting medical officer of health

(1)

A person commits an offence who in any way (directly or indirectly, by act or default)—

(a)

threatens, assaults, or intentionally obstructs or hinders a medical officer of health or any person authorised by a medical officer of health in the exercise or performance of powers or functions under any of sections 266 to 273; or

(b)

threatens, assaults, or intentionally obstructs or hinders a member of the police acting under section 275; or

(c)

does, or delays ceasing to do, a thing prohibited or forbidden by a medical officer of health or any person authorised by a health officer medical officer of health in the exercise of powers or functions under any of sections 266 to 273.

(2)

A person who commits an offence against this section is liable on summary conviction,—

(a)

in the case of an offence referred to in subsection (1)(a) or (b), to imprisonment for a term not exceeding 6 months, or to a fine not exceeding $50,000, or to both; or

(b)

in the case of an offence referred to in subsection (1)(c), to a fine not exceeding $20,000.

Compare: 1956 No 65 s 72

277 Medical officer of health may cause sanitary works to be undertaken

(1)

Without limiting the liability of any person for an offence under section 276, if any offence under that section consists in not doing any sanitary work or in failing to remedy any sanitary defect, the medical officer of health may cause the work to be done or the defect to be remedied at the entire expense of the offender.

(2)

All expenses incurred under subsection (1) are recoverable as a debt due to the Crown.

Compare: 1956 No 65 s 73

278 Priority for medicines

(1)

The Director-General may at any time devise policies determining the priorities with which supplies of medicines that are under the control of the Crown or a Crown entity are to be dispensed during any period while, under section 264(2), emergency powers may be exercised.

(2)

During any period while, under section 264(2), emergency powers may be exercised—

(a)

the Director-General may, if satisfied that there is or is likely to be a shortage of medicines, in accordance with a policy devised under subsection (1) for the medicines, by notice in the Gazette, require persons administering, dispensing, prescribing, or supplying stated medicines that are under the control of the Crown or a Crown entity to administer, dispense, prescribe, or supply them in accordance with priorities, and subject to any conditions, stated in the notice; and

(b)

every person administering, dispensing, prescribing, or supplying medicines stated in the notice that are under the control of the Crown or a Crown entity must—

(i)

comply with the priorities; and

(ii)

comply with any conditions, stated in the notice.

(3)

A notice under subsection (2) must state whether it applies to—

(a)

all persons administering, dispensing, prescribing, or supplying the medicines concerned; or

(b)

particular classes of person administering, dispensing, prescribing, or supplying the medicines concerned; or

(c)

particular persons administering, dispensing, prescribing, or supplying the medicines concerned.

(4)

A notice under subsection (2) may relate to any medicine, whether or not it can be used in relation to the condition associated with the emergency or epidemic.

(5)

The Director-General must publish every policy devised under subsection (1), but may do so by making it available on the Internet.

(6)

In this section, medicine means any substance used or capable of being used to prevent, treat, or palliate a disease, or the symptoms or effects of a disease.

Compare: 1956 No 65 s 74C

279 Offences against sections in this subpart

Every person commits an offence who contravenes, or permits a contravention of, a direction issued under section 266(1), 268, or 269 and is liable on summary conviction,—

(a)

in a case where the contravention or other action was intentional or reckless, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $50,000, or to both; or

(b)

in any other case, to a fine not exceeding $20,000.

Subpart 2—Border health

280 Interpretation

(1)

In this subpart—

examination involving non-invasive procedures means an examination of a person by visual inspection, screening devices, or by other means that do not involve any physical contact with the person being examined other than physical contact that is

(a)

prescribed for the purposes of this definition; and

(b)

that includes only a minor intrusion and is transitory in nature

examination involving minimally invasive procedures means examination or testing of a person by visual inspection, screening devices, blood sampling, or by other means that do not involve physical contact other than physical contact that is minor and transitory in nature

quarantinable condition means—

(a)

a notifiable condition:

(b)

any other condition prescribed by regulations made under section 322 as a quarantinable condition for the purposes of this Act:

(c)

any other condition that in the opinion of a medical officer of health constitutes a serious risk to public health.

(2)

A condition referred to in paragraph (c) of the definition of quarantinable condition

(a)

ceases to be a quarantinable condition if—

(i)

at any time the Director of Public Health directs that it is not to be treated as a quarantinable condition; or

(ii)

within 14 days of the date on which the medical officer of health forms the opinion, the condition is not—

(A)

identified as a notifiable condition or a condition already prescribed as a quarantinable condition for the purposes of this Act; or

(B)

prescribed as a quarantinable condition for the purposes of this Act; and

(b)

need not, for the purposes of this Act, be treated as a quarantinable condition by the pilot or master of a craft or any crew or passenger or any other person concerned, unless the person concerned has been informed of the opinion of the medical officer of health.

281 Director-General may designate points of entry

The Director-General may designate points of entry for the purposes of this subpart.

Quarantine

282 Places of inspection for ships

The Minister may, by notice in the Gazette, declare any specified portion of any harbour to be a place of inspection to which ships liable to quarantine must be taken while awaiting inspection by a medical officer of health.

Compare: 1956 No 65 s 94

283 Affected places

The Minister may, by notice in the Gazette, declare any place in New Zealand to be an affected place for the purposes of this subpart, on the ground that the place is affected by a quarantinable condition.

Compare: 1956 No 65 s 95

284 Ships and aircraft liable to quarantine

(1)

The following ships are liable to quarantine:

(a)

every ship arriving in New Zealand from any port beyond New Zealand:

(b)

every ship arriving at any port in New Zealand from any affected place in New Zealand:

(c)

every ship on board which any quarantinable condition, or any condition reasonably believed or suspected to be a quarantinable condition, has broken out or been discovered.

(2)

The following aircraft are liable to quarantine:

(a)

every aircraft arriving in New Zealand from any place beyond New Zealand:

(b)

every aircraft arriving at an airport in New Zealand from any affected place in New Zealand.

(3)

Despite subsections (1) and (2), ships and aircraft of a specified class may be exempted from liability to quarantine in circumstances, and subject to conditions, specified in regulations made under section 322.

Compare: 1956 No 65 s 96

285 Persons liable to quarantine

(1)

A person is liable to quarantine if he or she is on board, or disembarks from, a craft that is liable to quarantine.

(2)

Sections 289 and 290 (which enable more significant powers to be exercised) apply to a person liable to quarantine if a medical officer of health or health protection officer, or any person authorised by a medical officer of health, believes or suspects, on reasonable grounds,

(a)

that the person is affected by a quarantinable condition; or

(b)

that, within the 14 days before he or she arrived in New Zealand, he or she has been exposed to a condition that (whether or not it was a quarantinable condition at the time of the believed or suspected exposure) is a quarantinable condition.

(2)

Sections 289 and 290 (which enable more significant powers to be exercised) apply to a person liable to quarantine if a medical officer of health or health protection officer, or any person authorised by a medical officer of health, believes or suspects, on reasonable grounds,

(a)

that

(i)

the person is affected by a quarantinable condition; or

(ii)

within the known incubation period of the condition concerned and before he or she arrived in New Zealand, he or she has been exposed to a condition that (whether or not it was a quarantinable condition at the time of the believed or suspected exposure) is a quarantinable condition; and

(b)

the person poses a risk to public health.

Compare: 1956 No 65 s 97(2)

286 People liable to quarantine to comply with directions and supply information

(1)

A person who is liable to quarantine—

(a)

must comply with all directions, requirements, or conditions given, made, or imposed by a medical officer of health or a person authorised by a medical officer of health, under this subpart; and

(b)

must on request by a medical officer of health or a person authorised by a medical officer of health undergo an examination involving non-invasive minimally invasive procedures; and

(c)

must, on request by a medical officer of health or a person authorised by a medical officer of health, give any information the officer believes on reasonable grounds to be necessary to enable the management of a risk to public health.

(2)

In the case of people arriving in New Zealand by craft, a medical officer of health or a person authorised by a medical officer of health may request information under subsection (1)(c) by requiring the person who appears to the officer to be in charge of the craft to collect or supply some or all of it—

(a)

by requiring the person to distribute and collect cards or forms for passengers and crew to fill in; or

(b)

in any other reasonable manner the officer may require.</